Holding

Officers invested with powers under Section 53 of the NDPS Act are 'police officers' within the meaning of Section 25 of the Evidence Act, and 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.

Summary

The Supreme Court considered whether officers invested with powers under Section 53 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) are 'police officers' within the meaning of Section 25 of the Indian Evidence Act, 1872, and whether a statement recorded under Section 67 of the NDPS Act can be used as a confessional statement in trial. The majority (R.F. Nariman and Navin Sinha, JJ.) held that such officers are police officers, and any confessional statement made to them is barred under Section 25 of the Evidence Act. They further held that a statement recorded under Section 67 cannot be used as a confessional statement in the trial of an offence under the NDPS Act. The dissenting opinion (Indira Banerjee, J.) disagreed, holding that officers under Section 53 are not police officers and that statements under Section 67 are admissible. The reference was answered accordingly, and the appeals were sent back to Division Benches for disposal on merits.

Issues considered

Whether an officer empowered under Section 42 or Section 53 of the NDPS Act is a 'police officer' within the meaning of Section 25 of the Evidence Act, rendering confessional statements made to such officers inadmissible?
What is the extent, nature, purpose and scope of the power conferred under Section 67 of the NDPS Act, and whether a statement recorded under Section 67 can be used as substantive evidence to convict an accused?

Legislation cited

Code of Criminal Procedure, 1973s. 100, s. 161, s. 162, s. 163, s. 164, s. 165, s. 169, s. 170, s. 172, s. 173, s. 190, s. 2(d), s. 2(g), s. 2(h), s. 2(r), s. 46
Constitution of Indias. 14, s. 20(3), s. 21
Indian Evidence Act, 1872s. 24, s. 25, s. 26, s. 27
Narcotic Drugs and Psychotropic Substances Act, 1985s. 35, s. 36A, s. 37, s. 42, s. 50, s. 52, s. 53, s. 53A, s. 54, s. 57, s. 58, s. 59, s. 66, s. 67

Subjects

Narcotic Drugs and Psychotropic Substances ActEvidence ActPolice OfficerConfessionSection 67Section 53Section 25Constitutional LawRight against self-incriminationCriminal Procedure Code

Judgment

[2020] 12 S.C.R. 583 583

TOFAN SINGH A
v.
STATE OF TAMIL NADU
(Criminal Appeal No. 152 of 2013 Etc.)
OCTOBER 29, 2020 B
[R. F. NARIMAN, NAVIN SINHA AND
INDIRA BANERJEE, JJ.]
Narcotic Drugs and Psychotropic Substances Act, 1985:
ss. 42, 53 and 67 – Power under s. 67 – Extent, nature, C
purpose and scope of – Confession made under – Before the officers
designated u/ss. 42 or 53 – Whether admissible as a substantive
evidence – Held: Statement recorded under s. 67 cannot be admitted
as a substantive evidence – To hold that such statement can be the
basis to convict a person under the Act would be a direct infringement
D
of the constitutional guarantees contained in Arts. 14, 20(3) and
21 of the Constitution.
Evidence Act, 1872:
s.25 – Officers invested with powers u/s. 53 of NDPS Act –
Are ‘Police Officers’ within the meaning of s. 25 – Therefore, any E
confessional statement made to such officers, would be barred u/s.
25.
s.25 – ‘Police Officers’ – s. 25 – Held: Expression ‘Police
Officers’ in s.25 does not only mean a police officer who belongs to
State Police force, but includes officers who may belong to other F
departments – Where limited powers of investigation are given to
officers for some purpose other than the prevention and detection
of crime, such persons cannot be said to be police officers – Where
a person, not a police officer properly so called, if invested with all
powers of investigation, which culminates in filing of police report,
such person can be called police officer. G

Interpretation of statutes:
Marginal note – Is an important internal tool for indicating
the meaning and purpose of a Section in a statute.
H
583
584 SUPREME COURT REPORTS [2020] 12 S.C.R.

A Words and Phrases:
‘Enquiry’ – Meaning of
Expression ‘Custody’ – Meaning of – Distinction from the
expression ‘arrest’.
B ‘Police Officer’ – Meaning in the context of s. 25 of Evidence
Act.
Answering the Reference, the Court
PER R. F. NARIMAN, J (FOR HIMSELF AND NAVIN
SINHA, J.)
C
HELD: 1.1. The Narcotic Drugs and Psychotropic
Substances Act, 1985 (NDPS Act) is to be construed in the
backdrop of Article 20(3) and Article 21 of the Constitution of
India. The fundamental rights contained in Articles 20(3) and 21
are given pride of place in the Constitution. By the 44 th
D Amendment to the Constitution, it is now provided that even in
an Emergency, these rights cannot be suspended – see Article
359(1). The interpretation of a statute like the NDPS Act must
be in conformity and in tune with the spirit of the broad
fundamental right not to incriminate oneself, and the right to
privacy. A delicate balance is maintained between the power of
E
the State to maintain law and order, and the fundamental rights
chapter which protects the liberty of the individual. Several
safeguards are thus contained in the NDPS Act, which is of an
extremely drastic and draconian nature. [Para 27][662-F-G]
1.2 Section 25 of Evidence Act, 1872 states that a confession
F
made to any police officer, whatever his rank, cannot be relied
upon against a person accused of any offence. “Police officer” is
not defined in the Evidence Act or in any cognate criminal statute.
Section 25 is to be viewed in contrast to section 24, given the
situation in India of the use of torture and third-degree measures.
G Unlike section 24, any confession made to a police officer cannot
be used as evidence against a person accused of an offence, the
voluntariness or otherwise of the confession being irrelevant – it
is conclusively presumed by the legislature that all such
confessions made to police officers are tainted with the vice of
coercion. [Para 29][664-B-D]
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TOFAN SINGH v. STATE OF TAMIL NADU 585

The ‘First Report of Her Majesty’s Commissioners A
Appointed to Consider the Reform of the Judicial
Establishments, Judicial Procedure and Laws of India
& C.’ (1856) – referred to.
1.3 The interpretation of the term “accused” in section 25
of the Evidence Act is materially different from that contained in B
Article 20(3) of the Constitution. The scope of the section is not
limited by time – it is immaterial that the person was not an
accused at the time when the confessional statement was made.
Thus, whereas a formal accusation is necessary for invoking the
protection under Article 20(3), the same would be irrelevant for
invoking the protection under section 25 of the Evidence Act. C
[Paras 31 and 33][665-B-C; 666-D]
1.4 Section 26 of the Evidence Act extends the protection
to confessional statements made by persons while “in the
custody” of a police-officer, unless it be made in the immediate
presence of a Magistrate. “Custody” is not synonymous with D
“arrest” – custody could refer to a situation pre-arrest. In fact,
section 46 of the CrPC speaks of “a submission to the custody
by word or action”, which would, inter alia, refer to a voluntary
appearance before a police officer without any formal arrest being
made. [Para 34][666-D-F] E
State of Bombay v. Kathi Kalu Oghad and Ors. [1963]
2 SCR 10; State of U.P. v. Deoman Upadhyaya [1961]
1 SCR 14; K.S. Puttaswamy and Anr. v. Union of India
and Ors. (2017) 10 SCC 1: [2017] 10 SCR 569 –
followed. F
Nandini Satpathy v. P.L. Dani (1978) 2 SCC 424: [1978]
3 SCR 608; Selvi v. State of Karnataka (2010) 7 SCC
263; State of U.P. v. Deoman Upadhyaya [1961] 1 SCR
14; Agnoo Nagesia v. State of Bihar [1966] 1 SCR 134;
State of Haryana and Ors. v. Dinesh Kumar (2008) 3 G
SCC 222: [2008] 1 SCR 281 – relied on.
M.P. Sharma and Ors. v. Satish Chandra [1954] SCR
1077 – stood overruled.

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586 SUPREME COURT REPORTS [2020] 12 S.C.R.

A 2.1 The interplay between the CrPC and the provisions of
the NDPS Act is contained in several provisions. CrPC has been
expressly excluded when it comes to suspension, remission or
commutation in any sentence awarded under the NDPS Act – see
Section 32A. Equally, nothing contained in section 360 of the
CrPC or in the Probation of Offenders Act, 1958 is to apply to a
B
person convicted of an offence under the NDPS Act, subject to
the exceptions that such person is under 18 years of age, and
that that offence only be punishable under section 26 or 27 of the
NDPS Act – see section 33. On the other hand, CrPC has been
made expressly applicable by sections 34(2), 36B, 50(5) and 51
C of NDPS Act. Equally, CrPC has been applied with necessary
modifications under sections 36A(1)(b), 37(1)(b) and 53A of NDPS
Act. Read with sections 4(2) and 5 of CrPC, the scheme of the
NDPS Act seems to be that CrPC is generally followed, except
where expressly excluded, or applied with modifications. [Paras
37 and 38][668-A-C; D-F]
D
2.2 Given the stringent nature of the NDPS Act, several
sections provide safeguards so as to provide a balance between
investigation and trial of offences under the Act, and the
fundamental rights of the citizen. Several safeguards are contained
in section 42. From this section it is clear that only when the
E concerned officer has “reason to believe” from personal
knowledge or information given by any person and taken down
in writing that an offence has been committed, that the concerned
officer may, only between sunrise and sunset, enter, search, seize
drugs and materials, and arrest any person who he believes has
F committed any offence. By the first proviso, this can be done
only by an officer not below the rank of sub-inspector. Under
sub-section (2) in addition, where the information in writing is
given, the officer involved must send a copy thereof to his
immediate official superior within seventy-two hours. It is
important here to contrast “reason to believe” with the
G expression “reason to suspect”, which is contained in section 49
of the NDPS Act. [Paras 45 and 46][674-B; 675-E-H]
A.S. Krishnan v. State of Kerala (2004) 11 SCC 576 :
[2004] 3 SCR 44 – relied on.

H
TOFAN SINGH v. STATE OF TAMIL NADU 587

2.3 Section 50 of the NDPS Act contains extremely A
important conditions under which a search of persons shall be
conducted. Section 52(1)-(3) contains three separate safeguards,
insofar as disposal of persons arrested and articles seized are
concerned. Section 57 then speaks of a person making an arrest
or seizure having to make a full report of all the particulars of
B
such arrest or seizure to his immediate official superior within
forty-eight hours. Equally, under section 57A, whenever any
officer notified under section 53 makes an arrest or seizure under
the Act, the officer shall make a report of the illegally acquired
properties of such person to the jurisdictional competent authority
within ninety days of the arrest or seizure. Section 58 more than C
any other provision, makes it clear that a person’s privacy is not
to be trifled with, because if it is, the officer who trifles with it is
himself punishable under the provision. Under section 63, which
contains the procedure in making confiscations, the first proviso
to sub-section (2) makes it clear that no order of confiscation of
D
an article or thing shall be made until the expiry of one month
from the date of seizure, or without hearing any person who may
claim any right thereto and the evidence which he produces in
respect of his claim. [Paras 47, 52, 53 and 54][676-D-E; 685-G-
H; 686-A-B, F-G]
State of Punjab v. Baldev Singh (1999) 6 SCC 172 : E
[1999] 3 Suppl. SCR 174 – followed.
Vijaysinh Chandubha Jadeja v. State of Gujarat (2011)
1 SCC 609 : [2010] 13 SCR 255 – referred to.
2.4 The NDPS Act is predominantly a penal statute. Given F
the stringent provisions of the NDPS Act, together with the
safeguards mentioned in the provisions, the statutes like the
NDPS Act have to be construed bearing in mind the fact that the
severer the punishment, the greater the care taken to see that
the safeguards provided in the statute are scrupulously followed.
[Para 55][686-H; 687-A] G
State of Punjab v. Baldev Singh (1999) 6 SCC 172:
[1999] 3 Suppl. SCR 174 – followed.

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A Directorate of Revenue and Anr. v. Mohammed Nisar
Holia (2008) 2 SCC 370; Union of India v. Bal Mukund
(2009) 12 SCC 161: [2009] 5 SCR 205 – relied on.
3.1 The marginal note to section 67 NDPS Act indicates
that it refers only to the power to “call for information, etc.” A
B marginal note is an important internal tool for indicating the
meaning and purpose of a section in a statute, as it indicates the
“drift” of the provision. [Para 59]]689-F]
K.P. Varghese v. Income Tax Officer, Ernakulam and
Anr. (1981) 4 SCC 173 : [1982] 1 SCR 629 – relied
C on.
3.2 It is only an officer referred to in section 42 of NDPS
Act who may use the powers given under section 67 in order to
make an “enquiry” in connection with the contravention of any
provision of this Act. The word “enquiry” has been used in section
D 67 to differentiate it from “inquiry” as used in section 53A, which
is during the course of investigation of offences. The notifications
issued under the Act soon after the Act came into force,
specifically speak of the powers conferred under section 42(1)
read with section 67. This is an important executive reading of
the NDPS Act, which makes it clear that the powers to be exercised
E under section 67 are to be exercised in conjunction with the
powers that are delineated in section 42(1). [Para 60][690-B-D]
Desh Bandhu Gupta & Co. v. Delhi Stock Exchange
Assn. Ltd. (1979) 4 SCC 565: [1979] 3 SCR 373 –
referred to.
F
3.3 The officer referred to in section 42 is given powers of
entry, search, seizure and arrest without warrant, with the
safeguards. The first safeguard is that such officer must have
“reason to believe”, which is different from mere “reason to
suspect”. It is for this reason that such officer must make an
G enquiry in connection with the contravention of the provisions of
this Act, for otherwise, even without such enquiry, mere suspicion
of the commission of an offence would be enough. It is in this
enquiry that he has to call for “information” under sub-clause

H
TOFAN SINGH v. STATE OF TAMIL NADU 589

(a), which “information” can be given by any person and taken A
down in writing, as is provided in section 42(1). Further, the
information given must be for the purpose of “satisfying” himself
that there has been a contravention of the provisions of this Act,
which again goes back to the expression “reason to believe” in
section 42. Therefore, it cannot be said that “enquiry” in section
B
67 is the same as “investigation”, which is referred to in section
53. [Para 61][691-C-F]
3.4 By virtue of section 2(xxix) of the NDPS Act, the
definition u/s. 2(h) becomes applicable to the use of the expression
“investigation” in section 53 of the NDPS Act. It is an inclusive
definition, by which, “evidence” is collected by a police officer or C
a person authorised by the Magistrate. The “enquiry” that is
made by a section 42 officer is so that such officer may gather
“information” to satisfy himself that there is “reason to believe”
that an offence has been committed in the first place. This
becomes even clearer from section 52(3), whereunder every D
person arrested and article seized under sections 41 to 44 shall
be forwarded without unnecessary delay either to the officer-in-
charge of the nearest police station, who must then proceed to
“investigate” the case given to him, or to the officer empowered
under section 53 of the NDPS Act, which officer then
“investigates” the case in order to find out whether an offence E
has been committed under the Act. It is clear, therefore, that
section 67 is at an antecedent stage to the “investigation”, which
occurs after the concerned officer under section 42 has “reason
to believe”, upon information gathered in an enquiry made in
that behalf, that an offence has been committed. [Paras 63 and F
64][692-C-G]
3.5 In section 67(c) of the NDPS Act, the expression used
is “examine” any person acquainted with the facts and
circumstances of the case. The “examination” of such person is
again only for the purpose of gathering information so as to satisfy G
himself that there is “reason to believe” that an offence has been
committed. This can, by no stretch of imagination, be equated to
a “statement” under section 161 of the CrPC. [Para 65][692-G-
H]

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590 SUPREME COURT REPORTS [2020] 12 S.C.R.

A Sahoo v. State of U.P. [1965] 3 SCR 86 – held not
applicable.
3.6 Equating confession u/s. 67 as statement u/s. 161 Cr.
P.C. flies in the face of the fundamental rights contained in Articles
20(3) and 21, as well as the scheme of the NDPS Act, together
B with the safeguards. First and foremost, a police officer, properly
so-called, may be authorised to call for information etc. under
section 67, as he is an officer referred to in section 42(1). Yet,
while “investigating” an offence under the NDPS Act i.e.
subsequent to the collection of information etc. under section 67,
the same police officer will be bound by sections 160-164 of the
C CrPC, together with all the safeguards mentioned therein – firstly,
that the person examined shall be bound to answer truly all
questions relating to such case put to him, other than questions
which would tend to incriminate him; secondly, the police officer
is to reduce this statement into writing and maintain a separate
D and true record of this statement; thirdly, the statement made
may be recorded by audio-video electronic means to ensure its
genuineness; and fourthly, a statement made by a woman can
only be made to a woman police officer or any woman officer.
Even after all these safeguards are met, no such statement can
be used at any inquiry or trial, except for the purpose of
E contradicting such witness in cross-examination. [Para 66][693-
B-E]
Tahsildar Singh v. State of U.P. [1959] Supp (2) SCR
875 – followed.

F 3.7 If a confessional statement made under section 67 is
considered sufficient as substantive evidence to convict an
accused under the NDPS Act, section 53A would be rendered
otiose. Sections 53 and 53A of the NDPS Act, when read together,
would make it clear that section 53A is in the nature of an
exception to sections 161, 162 and 172 of the CrPC. This is for
G the reason that section 53(1), when it invests certain officers or
classes of officers with the power of an officer in charge of a police
station for investigation of offences under the NDPS Act, refers
to Chapter XII of the CrPC, of which sections 161, 162 and 172
are a part. First and foremost, under section 162(1) of the CrPC,
H
TOFAN SINGH v. STATE OF TAMIL NADU 591

statements that are made in the course of investigation are not A
required to be signed by the person making them – under section
53A they can be signed by the person before an officer empowered
under section 53. Secondly, it is only in two circumstances [under
section 53A(1)(a) and (b)] that such a statement is made relevant
for the purpose of proving an offence against the accused: it is
B
only if the person who made the statement is dead, cannot be
found, is incapable of giving evidence; or is kept out of the way
by the adverse party, or whose presence cannot be obtained
without delay or expense which the court considers unreasonable,
that such statement becomes relevant. Otherwise, if the person
who made such a statement is examined as a witness, and the C
court thinks that in the interest of justice such statement should
be made relevant and does so, then again, such statement may
become relevant. None of this would be necessary if a confessional
statement made under section 67 – not being bound by any of
these constraints – would be sufficient to convict the accused.
D
[Para 72][697-D-H; 698-A-B]
H.N. Rishbud and Inder Singh v. State of Delhi [1955]
1 SCR 1150 – relied on.
Mukesh Singh v. State (Narcotic Branch of Delhi) 2020
SCC OnLine SC 700 – distinguished. E
Mohan Lal v. State of Punjab (2018) 17 SCC 627:
[2018] 9 SCR 1006; State v. V. Jayapaul (2004) 5 SCC
223 – referred to.
3.8 An officer-in-charge of a police station, when he
investigates an offence, begins by gathering information, in the F
course of which he may collect evidence relating to the
commission of the offence, which would include search and seizure
of things in the course of investigation, to be produced at the
trial. Under the scheme of the NDPS Act, it is possible that the
same officer who is authorised under section 42 is also authorised G
under section 53. The Notifications S.O. 822 (E) and S.O. 823
(E) dated 14.11.1985 issued by Ministry of Finance (Department
of Revenue) indicate that officers of and above the rank of
Inspector in the Departments of Central Excise, Customs,

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592 SUPREME COURT REPORTS [2020] 12 S.C.R.

A Revenue Intelligence, Central Economic Intelligence Bureau and
Narcotics Control Bureau were authorised to act under both
sections 42 and 53. These notifications dated 14.11.1985 were
superseded by Notifications S.O. 3901 (E) and S.O. 3899 (E)
issued by the Ministry of Finance (Department of Revenue) on
30.10.2019. Even the new Notifications dated 30.10.2019 indicate
B
that the powers under sections 42 and 53 of the NDPS Act are
invested in officers of and above the rank of inspectors in the
Central Board of Indirect Taxes and Customs, Central Bureau
of Narcotics, Directorate of Revenue Intelligence, Central
Economic Intelligence Bureau and of and above the rank of Junior
C Intelligence Officer in Narcotics Control Bureau. [Paras 78, 80
and 81][702-C-E, G; 703-B-C; 704-C]
State of Madhya Pradesh v. Mubarak Ali [1959] Supp.
2 SCR 201 – relied on.
4.1 Where limited powers of investigation are given to
D officers primarily or predominantly for some purpose other than
the prevention and detection of crime, such persons cannot be
said to be police officers under section 25 of the Evidence Act. A
“police officer” does not have to be a police officer in the narrow
sense of being a person who is a police officer so designated
E attached to a police station. Where a person who is not a police
officer properly so-called is invested with all powers of
investigation, which culminates in the filing of a police report,
such officers can be said to be police officers within the meaning
of section 25 of the Evidence Act, as when they prevent and detect
crime, they are in a position to extort confessions, and thus are
F able to achieve their object through a shortcut method of
extracting involuntary confessions. [Para 126][732-E-H]
4.2 There is distinction between the investigative powers
of officers who are designated in statutes primarily meant for
revenue or railway purposes, as against officers who are
G designated under section 53 of the NDPS Act: first, that section
53 is located in a statute which contains provisions for the
prevention, detection and punishment of crimes of a very serious
nature. Even if the NDPS Act is to be construed as a statute
which regulates and exercises control over narcotic drugs and
H
TOFAN SINGH v. STATE OF TAMIL NADU 593

psychotropic substances, the prevention, detection and A
punishment of crimes related thereto cannot be said to be ancillary
to such object, but is the single most important and effective
means of achieving such object. This is unlike the revenue statutes
where the main object was the due realisation of customs duties
and the consequent ancillary checking of smuggling of goods (as
B
in the Land Customs Act, 1924, the Sea Customs Act, 1878 and
the Customs Act, 1962); the levy and collection of excise duties
(as in the Central Excise Act, 1944); or as in the Railway Property
(Unlawful Possession Act), 1966, the better protection and
security of Railway property. Second, unlike the revenue statutes
and the Railway Act, all the offences to be investigated by the C
officers under the NDPS Act are cognizable. Third, that section
53 of the NDPS Act, unlike the aforesaid statutes, does not
prescribe any limitation upon the powers of the officer to
investigate an offence under the Act, and therefore, it is clear
that all the investigative powers vested in an officer in charge of
D
a police station under the CrPC – including the power to file a
charge-sheet – are vested in these officers when dealing with an
offence under the NDPS Act. This is wholly distinct from the
limited powers vested in officers under the aforementioned
revenue and railway statutes for ancillary purposes, which were
in aid of the dominant object of the statutes in question, not E
primarily concerned with the prevention and detection of crime,
unlike the NDPS Act. Also, importantly, none of those statutes
recognised the power of the State police force to investigate
offences under those Acts together with the officers mentioned
in those Acts, as is the case in the NDPS Act. No question of
F
manifest arbitrariness or discrimination on the application of
Article 14 of the Constitution of India would therefore arise in
those cases, unlike cases which arise under the NDPS Act. [Para
132][736-G-H; 737-A-D; F-G]
4.3 When sections 53 and 53A are seen together in the
context of a statute which deals with prevention and detection of G
crimes of a very serious nature, it becomes clear that these
sections cannot be construed in the same manner as sections
contained in revenue statutes and railway protection statutes.
[Para 133][737-H; 738-A]
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594 SUPREME COURT REPORTS [2020] 12 S.C.R.

A 4.4 It is clear that the designated officer under section 53,
invested with the powers of an officer in charge of a police station,
is to forward a police report stating the particulars that are
mentioned in section 173(2) CrPC. Because of the special
provision contained in section 36A(1) of the NDPS Act, this police
report is not forwarded to a Magistrate, but only to a Special
B
Court under section 36A(1)(d). The non obstante clause contained
in section 36A(1) makes it clear that the drill of section 36A of
NDPS Act is to be followed notwithstanding anything contained
in section 2(d) of the CrPC. It is obvious that section 36A(1)(d)
is inconsistent with section 2(d) and section 190 of the CrPC and
C therefore, any complaint that has to be made can only be made
under section 36A(1)(d) of NDPS Act to a Special Court, and not
to a Magistrate under section 190 CrPC [Para 137][741-B-E]
4.5. It cannot be said that the procedure under section 190
Cr. P.C. has been replaced only in part, the police report and
D complaint procedure under section 190 not being displaced by
section 36A(1)(d). Section 36A(1)(d) specifies a scheme which is
completely different from that contained in the CrPC. Whereas
under section 190 of the CrPC it is the Magistrate who takes
cognizance of an offence, under section 36A(1)(d) it is only a
Special Court that takes cognizance of an offence under the NDPS
E Act. Secondly, the “complaint” referred to in section 36A(1)(d)
is not a private complaint that is referred to in section 190(1)(a)
of the CrPC, but can only be by an authorised officer. Thirdly,
section 190(1)(c) of the CrPC is conspicuous by its absence in
section 36A(1)(d) of the NDPS Act – the Special Court cannot,
F upon information received from any person other than a police
officer, or upon its own knowledge, take cognizance of an offence
under the NDPS Act. Further, a Special Court under section 36A
is deemed to be a Court of Session, for the applicability of the
CrPC, under section 36C of the NDPS Act. A Court of Session
under section 193 of the CrPC cannot take cognizance as a Court
G of original jurisdiction unless the case has been committed to it
by a Magistrate. However, under section 36A(1)(d) of the NDPS
Act, a Special Court may take cognizance of an offence under the
NDPS Act without the accused being committed to it for trial. It

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TOFAN SINGH v. STATE OF TAMIL NADU 595

is obvious, therefore, that in view of section 36A(1)(d), nothing A
contained in section 190 of the CrPC can be said to apply to a
Special Court taking cognizance of an offence under the NDPS
Act. [Para 137][741-E-H; 742-A-B]
4.6. Also, the officer designated under section 53 by the
Central Government or State Government to investigate offences B
under the NDPS Act, need not be the same as the officer
authorised by the Central Government or State Government
under section 36A(1)(d) to make a complaint before the Special
Court. As a matter of fact, if the Central Government is to invest
an officer with the power of an officer in charge of a police station
under sub-section (1) of section 53, it can only do so after C
consultation with the State Government, which requirement is
conspicuous by its absence when the Central Government
authorises an officer under section 36A(1)(d). Also, both section
53(1) and (2) refer to officers who belong to particular departments
of Government. Section 36A(1)(d) does not restrict the officer D
that can be appointed for the purpose of making a complaint to
only an officer belonging to a department of the Central/State
Government. There can also be a situation where officers have
been designated under section 53 by the Government, but not
so designated under section 36A(1)(d). It cannot be that in the
absence of the designation of an officer under section 36A(1)(d), E
the culmination of an investigation by a designated officer under
section 53 ends up by being an exercise in futility. [Para 138][742-
C-F]
4.7 Section 59 of the NDPS Act is an important pointer to
when cognizance of an offence can take place only on a complaint, F
and not by way of a police report. By section 59(3), both in the
case of an offence under section 59(1) [which is punishable for a
term which may extend to one year] or in the case of an offence
under section 59(2) [which is punishable for a term which shall
not be less than 10 years, but which may extend to 20 years], no G
Court shall take cognizance of any offence under section 59(1) or
(2), except on a complaint in writing made with the previous
sanction of the Central Government, or, as the case may be, the
State Government. Thus, under section 59, in either case i.e. in a
case where the trial takes place by a Magistrate for an offence
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596 SUPREME COURT REPORTS [2020] 12 S.C.R.

A under section 59(1), or by the Special Court for an offence under
section 59(2), cognizance cannot be taken either by the
Magistrate or the Special Court, except on a complaint in writing.
This provision is in terms markedly different from section
36A(1)(d), which provides two separate procedures for taking
cognizance of offences made out under the NDPS Act. [Para
B
143][744-E-H]
4.8 It cannot be said that the “complaint” referred to in
section 36A(1)(d) refers only to section 59 of the NDPS Act. A
complaint can be made by a designated officer qua offences which
arise under the NDPS Act – it is not circumscribed by a provision
C which requires previous sanction for an offence committed under
section 58, as that would do violence to the plain language of
section 36A(1)(d). It is always open, therefore, to the designated
officer, designated this time for the purpose of filing a complaint
under section 36A(1)(d), to do so before the Special Court, which
D is a separate procedure provided for under the special statute, in
addition to the procedure to be followed under section 53. [Para
144][745-B-D]
4.9 It cannot be said that the power contained in section
53(1) is only a truncated power to investigate which does not
E culminate in a police report being filed because Section 53 does
not use the expression “deemed”. The officer who is designated
under section 53 can, by a legal fiction, be deemed to be an officer
in charge of a police station, or can be given the powers of an
officer in charge of a police station to investigate the offences
under the NDPS Act. Whether he is deemed as an officer in charge
F of a police station, or given such powers, are only different sides
of the same coin – the aforesaid officer is not, in either
circumstance, a police officer who belongs to the police force of
the State. To concede that a deeming fiction would give full powers
of investigation, including the filing of a final report, to the
G designated officer, as against the powers of an officer in charge of
a police station being given to a designated officer having only
limited powers to investigate, does not stand to reason, and would
be contrary to the express language and intendment of section
53(1). [Para 145][745-D-G]

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TOFAN SINGH v. STATE OF TAMIL NADU 597

4.10 When it is clear that the expression “police officers” A
does not only mean a police officer who belongs to the State police
force, but includes officers who may belong to other departments,
such as the Department of Excise who are otherwise invested
with all powers of investigation so as to attract the provisions of
section 25 of the Evidence Act, it is not correct to say that police
B
officers or policemen who belong to the police force are
recognised in the NDPS Act as being separate and distinct from
the officers of the Department of Narcotics, etc. If the distinction
between police officer as narrowly defined and the officers of the
Narcotics Control Bureau is something that is to be stressed,
then any interpretation which would whittle down the fundamental C
rights of an accused based solely on the designation of a particular
officer, would fall foul of Article 14, as the classification between
the two types of officers would have no rational relation to the
object sought to be achieved by the statute in question, which is
the prevention and detection of crime. [Para 146][745-G-H; 746-
D
A-C]
4.11 Section 32 of POTA and section 15 of TADA are
exceptions to section 25 of the Evidence Act in terms, unlike the
provisions of the NDPS Act. Both these Acts, vide section 32 and
section 15 respectively, have non-obstante clauses by which the
Evidence Act has to give way to the provisions of these Acts. E
Pertinently, confessional statements made before police officers
under the provisions of the POTA and TADA are made
“admissible” in the trial of such person. This is distinct from the
evidentiary value of statements made under the NDPS Act, where
section 53A states that, in the circumstances mentioned therein, F
statements made by a person before any officer empowered under
section 53 shall merely be “relevant” for the purpose of proving
the truth of any facts contained in the said statement. Therefore,
statements made before the officer under section 53, even when
“relevant” under section 53A, cannot, without corroborating
evidence, be the basis for the conviction of an accused. Also, G
when confessional statements are used under the TADA and
POTA, they are used with several safeguards which are contained
in these sections themselves. Additional safeguards/guidelines
were issued by the Court in *kartar Singh case in respect of TADA
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598 SUPREME COURT REPORTS [2020] 12 S.C.R.

A cases to ensure that the confession obtained in the course of
investigation by a police officer “is not tainted with any vice but
is in strict conformity with the well-recognised and accepted
aesthetic principles and fundamental fairness”. Insofar as POTA
is concerned, procedural safeguards while recording confessions
have been discussed in ** Navjot Sandhu case. Thus, to arrive at
B
the conclusion that a confessional statement made before an
officer designated under section 42 or section 53 can be the basis
to convict a person under the NDPS Act, without any non obstante
clause doing away with section 25 of the Evidence Act, and without
any safeguards, would be a direct infringement of the constitutional
C guarantees contained in Articles 14, 20(3) and 21 of the
Constitution of India. [Paras 149 and 150 - 152][749-A-E; 750F-
G; 753-G-H; 754-A]
*Kartar Singh v. State of Punjab (1994) 3 SCC 569:
[1994] 2 SCR 375; Noor Aga v. State of Punjab (2008)
D 16 SCC 417: [2008] 10 SCR 379; Nirmal Singh Pehlwan
v. Inspector, Customs (2011) 12 SCC 298: [2011] 9 SCR
446 – relied on.
**State (NCT of Delhi) v. Navjot Sandhu (2005) 11
SCC 600: [2005] 2 Suppl. SCR 79 – referred to.
E 5. Thus, 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
F taken into account in order to convict an accused under the NDPS
Act. 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. [Para 155][754-C-F]
Raj Kumar Karwal v. Union of India (1990) 2 SCC
G 409: [1990] 2 SCR 63; Kanhaiyalal v. Union of India
(2008) 4 SCC 668: [2008] 1 SCR 350 – overruled.
State of Punjab v. Barkat Ram [1962] 3 SCR 338; Raja
Ram Jaiswal v. State of Bihar [1964] 2 SCR 752; Badku
Joti Savant v. State of Mysore [1966] 3 SCR 698;
H
TOFAN SINGH v. STATE OF TAMIL NADU 599

Romesh Chandra Mehta v. State of West Bengal [1969] A
2 SCR 461; Illias v. Collector of Customs, Madras
[1969] 2 SCR 613; State of U.P. v. Durga Prasad (1975)
3 SCC 210: [1975] 1 SCR 881; Balkishan A. Devidayal
v. State of Maharashtra (1980) 4 SCC 600: [1981] 1
SCR 175; State of Gujarat v. Anirudhsing and Anr.
B
(1997) 6 SCC 514: [1997] 2 Suppl. SCR 234; Vinubhai
Haribhai Malviya and Ors. v. State of Gujarat and Anr.
2019 SCC OnLine SC 1346; John Thomas v. Dr. K.
Jagadeesan (2001) 6 SCC 30: [2001] 3 SCR 934 ;
Tofan Singh v. State of Tamil Nadu (2013) 16 SCC 31:
[2013] 9 SCR 962; Abdul Rashid v. State of Bihar C
(2001) 9 SCC 578; D.K. Basu v. Union of India (1997)
1 SCC 416: [1996] 10 Suppl. SCR 284 – referred to.
PER INDIRA BANERJEE, J. (DISSENTING)
1.1 The scheme of the NDPS Act makes it patently clear
that it essentially makes provisions, as are deemed necessary, D
for preventing and combating the abuse of and illicit trade and
trafficking in narcotic drugs and psychotropic substances. [Para
43][766-B]
1.2 However, despite an elaborate statutory framework, the
NDPS Act is not being effectively implemented. Illicit business E
in and consumption of narcotic drugs and psychotropic substances
is endangering the social and economic stability of India and the
developing countries, adversely affecting the health of the people,
causing malnutrition related ailments, causing a spurt in crimes
and increase in the spread of communicable diseases such as F
AIDS (Acquired Immuno Deficiency Syndrome), caused by
sharing of needles for administration of narcotic drugs. The lure
of money, vulnerability of adolescents, poverty and other facets
of socio-economic deprivations aggravate this menace and
provide sustenance to the racketeers involved in this flourishing
illicit business. [Paras 47 and 48][768-A-D] G
1.3 Socio-economic crimes i.e. “white collar crimes” affect
the health and material welfare of the community as a whole, as
against that of an individual victim, and are, by and large,

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600 SUPREME COURT REPORTS [2020] 12 S.C.R.

A committed not by disadvantaged low class people, but by very
affluent and immensely powerful people, who often exploit the
less advantaged, to execute their nefarious designs. Such crimes
have to be dealt with firmly and cannot be equated with other
crimes, committed by individual offenders against individual
victims. [Para 50][769-G-H; 770-A]
B
Article “Narcotic Aggression and Operation Counter
Attack” by the Mainstream dated March 7, 1992; The
Law Commission of India, in its 155th Report on Narcotic
Drugs and Psychotropic Substances Act, 1985
– referred to.
C
2.1 It is a well settled principle of criminal jurisprudence
that an accused is presumed innocent, unless proved guilty
beyond reasonable doubt, except where the statute, on existence
of certain circumstances, casts a reverse burden on the accused,
to dispel the presumption of guilt, as in the case of Section 304B
D of the Penal Code and many other statutes, particularly those
dealing with socio economic offences. The Legislature may, in
public interest, create an offence of strict liability where mens
rea is not necessary. There are presumptive provision in the
NDPS Act, such as Sections 35, 54 and 66. Under Section 54 of
E the NDPS Act presumption of commission of an offence may, inter
alia, be drawn from the possession of any narcotic drug or
psychotropic substance, or any apparatus for manufacture or
preparation thereof. The presumption is rebuttable. [Para
52][770-C-E]

F 2.2. The punishments prescribed for many of the offences
under the NDPS Act are very severe. When a statute has drastic
penal provisions, the authorities investigating the crime under
such law, have a greater duty of care, and the investigation must
not only be thorough, but also of a very high standard. [Para
53][770-F; 771-B]
G
2.3 There are inbuilt safeguards in the NDPS Act to protect
a person accused of an offence under the said Act, from
unnecessary harassment, or malicious or wrongful prosecution.
Section 58 provides for punishment of any person, authorized
under Section 42 or 43 or 44 for vexatious entry, search, seizure,
H or arrest. [Para 54][771-C-D]
TOFAN SINGH v. STATE OF TAMIL NADU 601

2.4 The condition precedent for exercise of power under A
Sections 41(2), 42(1), 43 or 44 is “reason to believe” and not
just reason to “suspect” that the circumstances specified in the
aforesaid provisions for action thereunder exist. The use of the
words “reason to believe” in Sections 41, 42, 43 and 48 is in
contradistinction with use of the phrase “Reason to Suspect”, in
B
Section 49 of the NDPS Act. [Para 59][773-D-E]
A. S. Krishnan and Ors. v. State of Kerala (2004) 11
SCC 576: [2004] 3 SCR 44; Income Tax Officer, I Ward,
District VI, Calcutta and Ors. v. Lakhmani Mewal Das
(1976) 3 SCC 757: [1976] 3 SCR 956 – relied on.
C
2.5 The NDPS Act is a complete code. The NDPS Act
specifically makes some provisions of the Cr.P.C applicable to
proceedings under the NDPS Act. The Act is very specific on
which of the provisions of the Cr.P.C. are to apply to proceedings
under the NDPS Act. [Para 68][775-G-H]
D
2.6 Section 5 specifically provides that nothing in the Cr.P.C
shall, in the absence of a specific provision to the contrary, affect
any special law in force or any special jurisdiction or power
conferred by any other law. The NDPS Act being a special
enactment, nothing in the Cr.P.C can affect any investigation or
inquiry under the NDPS Act, in the absence of any provision to E
the contrary in the NDPS Act. [Para 73][779-D-E]
2.7 Section 2(xxix) of the NDPS Act does not make the
provisions of the Cr.P.C. applicable to any investigation or enquiry
under the NDPS Act. The said Section only provides that words
and expressions used in the NDPS Act, and not defined, but F
defined in the Cr.P.C. have the meanings assigned in the Cr.P.C.,
unless the context otherwise requires. [Para 74][779-E]
2.8 Section 53 enables the Central Government or the State
Government, by notification in the Official Gazette, to invest any
officer of the Departments mentioned in the said Section, or any G
other Department of the Government, with the powers of an
Officer in Charge of a Police Station for the investigation of
offences under the said Act. If the provisions of the Cr.P.C were

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A to apply to investigations under the NDPS Act, it would not have
been necessary to invest any officer under the NDPS Act with
the powers of an Officer in Charge of a Police Station, for the
purpose of investigation of an offence under the NDPS Act, by
notification in the Official Gazette. The provisions of Section 50(5)
and 51 of the NDPS Act would also not have been necessary.
B
[Paras 76 and 77][780-B-D]
2.9 There does not appear to be any bar in Section 53 or
anywhere else in the NDPS Act, to officers empowered under
Sections 41(2) or 42, also being invested under Section 53, with
the powers of an Officer in Charge of a Police Station for
C investigation of offences under Section 53 of the NDPS Act. [Para
78][780-E]
2.10 There does not appear to be any provision in Chapter
V or elsewhere in the NDPS Act, which can reasonably be
construed to render an officer under Section, 41(2) or 42(1) of
D the NDPS Act ‘functus officio’ once the entry, search, seizure or
arrest has been made. [Para 79][780-G]
2.11 Section 53A of the NDPS Act is ex facie contradictory
to Section 162 of the Cr.P.C, which provides that no statement
made to a police officer, in course of an investigation under
E Chapter XII of the Cr.P.C shall, if reduced to writing, be signed
by the person making it, or used for any purpose at any inquiry or
trial in respect of the offences under investigation, except inter
alia to confront him if he gives evidence as a witness. Section
53A covers any statement made and signed by any person, before
F any officer empowered under Section 53 for the investigation of
offences, during the course of any proceedings by such officer,
under the NDPS Act, be it an inquiry or investigation. This
provision makes it abundantly clear that the principles embodied
in Sections 161/162 of the Cr.P.C have no application to any inquiry
or other proceeding under the NDPS Act, which would include
G an investigation. [Paras 81 and 82][781-F-H; 782-AB]
State of Delhi v. Shri Ram Lohia AIR 1960 SC 490;
George v. State of Kerala and Anr. (1998) 4 SCC 605 :

H
TOFAN SINGH v. STATE OF TAMIL NADU 603

[1998] 2 SCR 303 ; Munshi Prasad and Ors. v. State of A
Bihar (2002) 1 SCC 351 : [2001] 4 Suppl. SCR 25
– held inapplicable.
2.12 The NDPS Act, being a special statute, and in any case
a later Central Act, the provisions of the NDPS Act would prevail,
in case of any inconsistency between the NDPS Act and the B
Evidence Act. [Para 85][782-D-E]
2.13 The Evidence Act would however apply to a trial under
the NDPS Act in other respects, unless a contrary intention
appears from any specific provision of the NDPS Act. The
previous statement of a witness, even if admissible in evidence C
cannot be used against the w itness unless the witness is
confronted with the previous statement and given an opportunity
to explain. However, certain documents not otherwise admissible
under the Evidence Act, unless proved by evidence, may be
admissible under Section 52A(4) of the NDPS Act, subject to the
fulfilment of the conditions of that section. [Para 86][782-G; 783- D
A]
Murli and Anr. v. State of Rajasthan (2009) 9 SCC 417:
[2009] 13 SCR 378 – referred to.
2.14 Legislature has in its wisdom used the expression E
“investigation of the offence” in Section 53, and the term “inquiry”
in Section 67. Even though in common parlance “inquiry” and
“investigation” are used interchangeably, “investigation” in
Section 53 and “inquiry” in Section 67 cannot be construed to
mean the same. When different words are used in the same
statute, there is a presumption that they are not used in the same F
sense. A construction deriving support from differing phraseology
in different sections of a statute, may be negatived if it leads to
unreasonable or irrational results. Accordingly Section 53A refers
to a statement before any officer empowered under Section 53
for the investigation of offences during the course of any inquiry G
or proceeding by such officer. [Paras 90 - 93][784-G-H; 785-C-
E]
T.A. Krishnaswamy v. State of Madras AIR 1966 SC
1022 : [1966] SCR 31 – relied on.
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604 SUPREME COURT REPORTS [2020] 12 S.C.R.

A Kanhaiyalal Vishindas Gidwani v. Arun Dattatreya
Mehta (2001) 1 SCC 78 – referred to.
2.15 The NDPS Act does not define the expression
“investigation” or the expression “inquiry”. However, Section
2(xxix) of the NDPS Act provides that the words and expressions
B used in the Act and not defined but defined in the Code of Criminal
Procedure, 1973 have the meanings respectively assigned to them
in that Code. The definition of the terms ‘inquiry’ and ‘investigation’
as contained in Sections 2(g) and 2(h) of the Cr.P.C. [Paras 94 and
95][785-E-F]
C 2.16 The meaning of a word or expression used in a statute
can be construed and understood as per its definition, unless the
“context otherwise requires”. The definition of inquiry in Section
2(g) of the Cr.P.C. does not help to interpret the word inquiry in
Section 67 of the NDPS Act or in any other provision of Chapter
V thereof, since an inquiry under Chapter V of the NDPS Act is
D not by any Magistrate or Court. It is well settled that a word not
specifically defined in a statute may be interpreted as per its
ordinary meaning, which may be ascertained by reference to a
dictionary. As per the Concise Oxford English Dictionary
(Eleventh Edition) the word investigate means ‘carry out a
E systematic or formal enquiry into an incident or allegation as to
establish the truth’. Investigation, is the act of investigating. The
word “enquire” is, as per the same dictionary, to ask for
information. It also means “investigate”. Enquiry is the act of
asking for information. It is an official investigation. Words and
phrases in a statute have to be construed in the context in which
F they have been used. The statute has to be read as a whole.
[Paras 96 and 97][786-A-D]
Concise Oxford English Dictionary (Eleventh Edition)
– referred to.

G 2.17 Having regard to the meaning of the expressions
investigate/investigation and enquire/enquiry given in the Oxford
Dictionary, the use of the expressions in Central Excise Act, 1944,
Customs Act, 1962, Railway Property (Unlawful Possession) Act,
1966 and Cr. P.C. and having regard to the language and tenor of

H
TOFAN SINGH v. STATE OF TAMIL NADU 605

Sections 53, 53A, and Section 67 of the NDPS Act, the expression A
“inquiry” may reasonably be construed as a generic expression,
which could include the investigation of an offence. An inquiry
as contemplated in Section 67 is the collection of information
generally, to find out if there has been any contravention of the
NDPS Act, whereas investigation is the probing of an offence
B
under the NDPS Act and collection of materials to find out the
truth of the case sought to be made out against an accused
offender. However investigation may follow an enquiry or be part
of an enquiry. This is evident from a reading of the NDPS Act as
a whole. [Para 100][787-B-D]
2.18 An officer empowered under Section 53 with the C
powers of an Officer in Charge of a Police Station for the
investigation of an offence, also has the power to make an inquiry.
This is clear from the language used in Section 53A(1) of the
NDPS Act. The officer empowered under Section 53, with the
power of an Officer in Charge of a Police Station, can obviously D
make an inquiry within the meaning of Section 67 to find out
whether there has been any contravention of the NDPS Act. A
statement made before such an officer in course of any inquiry or
other proceeding, which is taken down in writing and signed by
the person making it, may in certain circumstances, be relevant
for the purpose of proving, in any prosecution for an offence under E
the NDPS Act, the truth of the facts it contains. [Para 102][787-
F-H; 788-A]
2.19 The power of an officer to investigate is not derived
from Section 53. It is an enabling provision, which empowers the
Central/State Government to invest an officer with the powers of F
an Officer in Charge of a Police Station, for the purpose of
investigation of an offence under the NDPS Act. The power to
invest an officer with the powers of an Officer in Charge of a
Police Station flows from Section 53. The authority to investigate
into an offence is implicit in the wider power to make an inquiry G
in connection with the contravention of any provision of the NDPS
Act. [Para 103][788-B-C]
2.20 An enquiry may be carried out by an officer referred
to in Section 42 of the NDPS Act, if empowered in this behalf.
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606 SUPREME COURT REPORTS [2020] 12 S.C.R.

A This is clear from Section 67. The same officer can also investigate
an offence under the NDPS Act, if he is also invested under Section
53, with the powers of an Officer in Charge of a Police Station, for
the purpose of investigation of an offence under the NDPS Act.
The power of an authorized officer referred to in Section 42, to
make an inquiry is not derived from Section 67. Section 67
B
empowers an authorized officer, referred to in Section 42, to do
the following acts during the course of an enquiry: “(a) call for
information from any person for the purpose of satisfying himself
whether there has been any contravention of the provisions of
this Act or any rule or order made thereunder; (b) require any
C person to produce or deliver any document or thing useful or
relevant to the enquiry; (c) examine any person acquainted with
the facts and circumstances of the case.” [Paras 104-106][788-
D-E; F-H]
2.21 Investigation of an offence under the NDPS Act, is a
D part of an inquiry under Chapter V of the said Act. Investigation
of an offence under the NDPS Act can be carried out by the same
officer empowered under Section 42, who triggered the
proceedings under Chapter V of the NDPS Act and carried out
search, seizure and/or arrest, if that officer is also invested under
Section 53 of the NDPS Act, with the powers of an Officer in
E Charge of a Police Station, for the purpose of investigation. [Para
107][789-A-B]
Mukesh Singh v. State (Narcotic Branch of Delhi) (2020)
SCC Online SC 700 – followed.

F 2.22 The language and tenor of Section 67 or Sections 41/
42 does not support the contention that an inquiry can only be
made by an officer referred to in Section 42, who is duly
authorized, before exercise of the powers of entry, search, seizure
or arrest, or at the stage of entry, search, seizure and arrest, but
not afterwards. The exercise of power under Sections 41/42 of
G the NDPS Act does not necessarily have to be preceded by an
inquiry. If an inquiry were to be restricted to the stage prior to
the exercise of the power of entry, search, seizure and arrest or
to the stage of making an entry, search, seizure or arrest, the
NDPS Act would have specifically provided so. There is no such
H provision, either express or implied. It is not permissible to read
TOFAN SINGH v. STATE OF TAMIL NADU 607

into Sections 41, 42 etc the words “after an inquiry” which do not A
exist in those provisions. Nor is it permissible to read the words
“before or at the time of entry, search, seizure or arrest” after
the words “during the course of any enquiry” in Section 67. [Para
110][789-G-H; 790-A-C]
2.23 The power conferred by Section 67 on an officer B
referred to in Section 42, duly authorised by the Central/State
Government in this behalf, to call for information, require
production of any document or thing or to examine any person,
etc. is exercisable in course of any inquiry. The power could be
exercised at any stage of the enquiry, before a complaint is filed.
The powers can be exercised prior to or after exercise of powers C
under Sections 41/42 and would include the stage of investigation
of an offence by an officer referred to in Section 42, if he is also
invested with powers under Section 50 of the NDPS Act. [Para
111][790-C-D]
2.24. An officer referred to in Section 42 of the NDPS Act, D
if not invested with powers under Section 53 of the said Act,
derives the power to call for information, require production of
documents and things and to examine persons from Section 67
of the NDPS Act. The powers of investigation of an Officer in
Charge of a Police Station include such powers. An officer invested E
with powers under Section 53 can also make an enquiry. This is
clear from the use of the words “A statement made and signed by
a person before any officer empowered under Section 53 for the
investigation of offences, during the course of any inquiry or
proceedings by such officer, shall be relevant...” in Section 53A(1).
The benefit of Section 53A(1) would not be available in the case F
of a similar statement made before an officer empowered under
Section 42, but not under Section 53 of the NDPS Act. [Para
112][790-E-G]
2.25 If, after an inquiry or investigation, a complaint is filed,
and the Special Court takes cognizance of the offence, any G
statements, documents or other things obtained in the inquiry/
investigation may be tendered and proved by the prosecution in
the trial against the offender unless the statement and/or
document and/or thing has been obtained by any promise,
inducement, coercion, threat, or intimidation. The question of H
608 SUPREME COURT REPORTS [2020] 12 S.C.R.

A whether any statement has been obtained by promise, coercion,
threat etc. and/or whether any particular officer, is authorized
under Section 42 or invested with powers under Section 53 are
matters of trial. The Prosecution has to establish the charges
against the offender, in accordance with law, at the trial. [Para
113][790-G-H; 791-A]
B
2.26 The provisions of the Cr.P.C. only apply to all warrants
issued and searches and seizures made under the NDPS Act, in
so far as they are not inconsistent with the provisions of the NDPS
Act, as provided in Section 51 of the NDPS Act and to the search
of a person, without complying with the requirement to take the
C person to be searched, to the nearest Gazetted Officer or
Magistrate, as provided in Section 50(5) of the NDPS Act. Of
course, the principles of Section 163 of the Cr.P.C. are implicit in
the provisions of the NDPS Act relating to inquiry and
investigation though the said Section may not apply to such inquiry
D or investigation. This is because the bar of Article 20(3) of the
Constitution of India has to be read into every statute in spirit
and substance. There can be no question of obtaining any
statement by any inducement, promise or threat. [Para 117][800-
H; 801-A-B]
E 2.27 The NDPS Act is a complete code. A comparison of
the various provisions of Chapter XII of the Cr.P.C with those of
Chapter V of the NDPS Act also makes it clear that the provisions
in Chapter V of the NDPS Act are independent of, and not
controlled by the provisions of the Cr.P.C except as provided in
Sections 50(5) and 51 of the NDPS Act. There are differences
F between the procedure of inquiry/investigation under Chapter V
of the NDPS Act and the procedure of investigation and/or enquiry
under the Cr.P.C. [Para 118][801-C-D]
2.28 Section 36A(1)(d) of the NDPS Act provides that “a
Special Court may, upon perusal of police report of the facts
G constituting an offence under the NDPS Act or upon complaint
made by an officer of the Central Government or a State
Government authorised in his behalf, take cognizance of that
offence, without the accused being committed to it for trial”.
Section 36A (1)(d) is similar to Section 190 of the Cr.P.C. A
H
TOFAN SINGH v. STATE OF TAMIL NADU 609

complaint, as defined in Section 2(d) of the Cr.P.C., means any A
allegation made to a Magistrate orally or in writing, to enable the
Magistrate to take action under the Cr.P.C. A complaint need
not be on a Police Report. However, as per the Explanation to
Section 2(d), a report of a police officer, which discloses a
cognizable offence is to be deemed to be a complaint and the
B
police officer who made the complaint, shall be deemed to be the
complainant. [Paras 120 and 121][803-A-D]
2.29 Section 36A(1)(d) enables the police to file a report,
before the Special Court, of facts constituting an offence under
the NDPS Act, which, as per the definition of police report in
Section 2(d) of the Cr.P.C., means a report forwarded under C
Section 173(2) of the Cr.P.C. Such a police report is deemed to
be a complaint. Such police report can be filed after an
investigation under Chapter XII of the Cr.P.C. There is no
provision in the NDPS Act, which makes it incumbent upon the
concerned officers who make any inquiry/investigation under the D
NDPS Act, to prepare or file any report. [Para 124][803-F-H]
2.30 If the police investigate any offence under the NDPS
Act and submit a report before the Special Court, all the relevant
provisions of the Cr.P.C. would have to be complied with,
including in particular Sections 161, 162, 163, 164 and 173. A E
statement before the police can neither be signed nor relied upon
for any purpose in a Court of law, except for the purpose specified
in the said section, that is, inter alia to confront the person making
the statement in cross examination in the trial. [Para 125][804-
A-B]
F
2.31 The Legislature has in its wisdom differentiated
between a police report, which is deemed to be a complaint, and
a complaint made by an officer of the Central or State Government,
authorized in this behalf. It is not for this Court to question the
wisdom of the Legislature. The fact that the Special Court may
take cognizance of an offence, upon a complaint made by an officer G
of the Central or State Government, authorized in this behalf,
and not a report, as required in case of the police, also shows
that an inquiry or investigation under the NDPS Act is not to be
treated in the same way, as a police investigation into an offence.
[Para 126][804-C-D] H
610 SUPREME COURT REPORTS [2020] 12 S.C.R.

A 2.32 The expression “police” is ordinarily understood to
mean that executive civil force of the State, entrusted with the
duty of maintenance of public order, and also the prevention and
detection of crime. The expression “police” or “police officer”
is not defined either in the Evidence Act 1872 or in the Cr.P.C.
Police officers are governed inter alia by the Police Act 1861,
B
enacted to make the police an effective instrument for the
prevention and detection of crime. [Paras 128 and 129][804-F-
H]
2.33 The police officers have enormous powers. The powers
of a police officer are far greater than those of an officer under
C the NDPS Act invested with the powers of an Officer in Charge
of a Police Station for the limited purpose of investigation of an
offence under the NDPS Act. The extensive powers of the police,
of investigation of all kinds of offences, powers to maintain law
and order, remove obstruction and even arrest without warrant
D on mere suspicion, give room to police officers to harass a person
accused or even suspected of committing an offence in a myriad
of ways. The police are, therefore, in a dominating position to be
able to elicit statements by intimidation, by coercion, or by threats
either direct or veiled. The powers of NDPS officers being
restricted to prevention and detection of crimes under the NDPS
E Act and no other crime, they do not have the kind of scope that
the police have, to exert pressure to extract tailored statements.
[Para 139][808-F-H; 809-A]
2.34 The provisions of the Cr.P.C do not apply to any inquiry
or investigation or other proceeding under the NDPS Act, except
F to the extent expressly provided by the NDPS Act, in view of
Section 4(2) read with Section 5 of the Cr.P.C. [Para 140][809-A-
B]
2.35 Officers under the NDPS Act, invested under Section
53 with the powers of an Officer in Charge of a Police Station, for
G the purpose of investigation of an offence under the NDPS Act,
do not exercise all the powers of police officers. They do not
have the power to file a police report under Section 173 Cr.P.C
which might be deemed a complaint. There is no provision in
the NDPS Act which requires any officer investigating an offence
H
TOFAN SINGH v. STATE OF TAMIL NADU 611

under the said Act or otherwise making an inquiry under the said A
Act to file a report. [Para 143][809-D-F]
2.36. Officers under the NDPS Act not being police officers,
Sections 161/162 of the Cr.P.C have no application to any
statement made before any officer under the NDPS Act, in the
course of any inquiry or other proceedings under the NDPS Act. B
[Para 144][809-F-G]
2.37 In any case, Section 53A is clearly contrary to and thus
overrides Section 162 of the Cr.P.C. While Section 162(1) of the
Cr.P.C. provides that no statement made by any person to a police
officer, when reduced to writing shall be signed by the person C
making it, or used for any purpose, save as provided in the proviso
to the said section, that is, to confront the person making the
statement, if he gives evidence as a witness, Section 53A(1)
provides that “a statement made and signed by a person before
any officer empowered under Section 53 for the investigation of
offences, during the course of any inquiry or proceedings by such D
officer, shall be relevant for the purpose of proving, in any
prosecution for an offence under this Act” in certain circumstances
specified in the said section. [Para 145][809-G-H; 810-A-B]
2.38 The statements made in any inquiry or investigation
may be recorded in writing and even signed by the person making E
it. In the absence of any provision similar to Section 162, in the
NDPS Act, a statement made before an officer under the NDPS
Act in the course of any inquiry, investigation or other
proceedings, may be tendered in evidence and proved in a trial
for prosecution of an offence under the NDPS Act in accordance F
with law. A statement confessional in nature is in the genre of
extra judicial confessions. [Para 146][810-B-C]
3.1 A confession made by an accused person is irrelevant
in a criminal proceeding, if it appears to the Court that the
confessions may have been elicited by any inducement, threat or G
promise from a person in authority and sufficient, in the opinion
of the Court, to give the accused person reasonable grounds, for
supposing that by making the confession, he would gain any
advantage or avoid any disadvantage in respect of proceedings
against him. [Para 148][810-F-G]
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612 SUPREME COURT REPORTS [2020] 12 S.C.R.

A State of Rajasthan v. Raja Ram (2003) 8 SCC 180:
[2003] 2 Suppl. SCR 445; Gura Singh v. State of
Rajasthan (2001) 2 SCC 205 : [2000] 5 Suppl. SCR
408 – referred to.
3.2 It is one thing to say that a piece of evidence is
B inadmissible and another thing to assess two or more pieces of
evidence on their probative value. A confession before a Judicial
Magistrate under Section 164 of the Cr.PC may have higher
probative value than other confessions. However, on that
parameter alone other confessions for example, extra judicial
confession cannot be rendered inadmissible in law. [Para
C 151][813-D-E]
3.3 Whether the officer concerned is duly empowered and/
or authorised to make an enquiry/investigation, whether any
statement or document has improperly been procured, etc. are
factors which would have to be examined by the Court on a case
D to case basis. Having regard to all relevant facts and
circumstances, the Court may not base conviction solely on a
statement made in an inquiry which is confessional, in the absence
of other materials with which the statement can be linked. It is
for the Special Court to weigh the statement and assess its
E evidentiary value, having regard to all relevant factors. All
statements and documents tendered in evidence have to be
proved at the trial in accordance with law. [Para 153][813-F-H;
814-A]
3.4 The officers under the NDPS Act are drawn from
F different Government Departments and are not necessarily police
officers as such. The NDPS Act also specifically differentiates
police officers from other officers entrusted with powers under
the NDPS Act, which is evident, inter alia, from Sections 41(2),
42(1), 52(3)(a), 53(1) and (2), 55, 68T of NDPS Act. [Para
175][826-A-B]
G
3.5 The NDPS Act may loosely have been described as a
penal statute in some judgments of this Court in the sense that
the NDPS Act contains stringent penal provisions including
punishment of imprisonment of twenty years and even death
sentence in certain exceptional cases of offence repeated after
H earlier conviction. [Para 183][827-G-H]
TOFAN SINGH v. STATE OF TAMIL NADU 613

Badku Joti Savant v. State of Mysore AIR 1966 SC A
1746:[1966] SCR 698; Romesh Chandra Mehta v. State
of West Bengal AIR 1970 SC 940: [1969] SCR 461;
Illias v. Collector of Customs, Madras AIR 1970 SC
1065: [1969] SCR 613 – followed.
State of Punjab v. Barkat Ram AIR 1962 SC 276: [1962] B
SCR 338; State of Uttar Pradesh v. Durga Prasad
(1975) 3 SCC 210 : [1975] 1 SCR 881 ; Balkishan A
Devidayal vs State of Maharashtra (1980) 4 SCC 600
: [1981] 1 SCR 175 ; Raj Kumar Karwal v. Union of
India and Ors. (1990) 2 SCC 409 : [1990] 2 SCR 63;
Kanhaiyalal v. Union of India (2008) 4 SCC 668 : C
[2008] 1 SCR 350 ; Pon Adithan v. Deputy Director,
Narcotics Control Bureau, Madras (1999) 6 SCC 1 :
[1999] 3 SCR 897 – relied on.
Amin Sharif v. Emperor AIR 1934 Cal 580 ; Nanoo
Sheikh Ahmed and Another v. Emperor AIR 1927 Bom D
4 ; Radha Kishun Marwari v. King-Emperor AIR 1932
Patna 293 ; Raja Ram Jaiswal v. State of Bihar AIR
1964 SC 828 : [1964] SCR 752 ; Abdul Rashid v. State
of Bihar (2001) 9 SCC 578 – referred to.
4.1 Constitution Benches are constituted to resolve a E
constitutional issue, harmonize conflicting views and settle the
law. A Constitution Bench decision might only be reconsidered
by a Constitution Bench of a larger strength and that too in
exceptional and compelling circumstances. An interpretation
which has held the field for over fifty years should not be upset F
for the asking. A Change in the legal position which has held the
field through judicial precedents over a length of time can only
be considered when such change is absolutely imperative. [Para
185][828-C-D]
‘Constitutional Supremacy – A Revisit’ by V. Sudhish G
Pai - referred to.
4.2 The dominant object of the NDPS Act is to control and
regulate operations relating to narcotic drugs and psychotropic

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614 SUPREME COURT REPORTS [2020] 12 S.C.R.

A substances, to provide for forfeiture of property derived from or
used in illicit traffic in narcotic drugs and psychotropic substances,
to implement the provisions of the International Convention on
Drugs and Psychotropic Substances, and for matters connected
therewith. On the other hand, the dominant object of a penal
statute is to provide for punishment of a range of intentional acts
B
and omissions of different types, enumerated in the statute. The
Penal Code is a typical penal statute. Statutes like the Prevention
of Corruption Act 1988 and the Protection of Children from Sexual
Offences Act 2012, which mainly provide for punishment of
specific offences are also penal statutes. [Paras 186 and 187][828-
C E-G]
5. Penal statutes enacted to deal with a social evil should
liberally be construed to give effect to the object for which the
statute has been enacted. [Para 188][828-G-H]
Rajindere Singh v. State of Punjab (2015) 6 SCC 477:
D [2015] 2 SCR 835; M. Narayanan Nambiar v. State of
Kerala AIR 1963 SC 1116 : [1963] Suppl. SCR 724
– followed.
Standard Chartered Bank v. Directorate of Enforcement
(2005) 4 SCC 530 : [2005] 1 Suppl. SCR 49 ; Balram
E Kumawat v. Union of India (2003) 7 SCC 628 : [2003]
3 Suppl. SCR 24 ; Reema Aggrawal v. Anupam (2004)
3 SCC 199 : [2004] 1 SCR 378 ; Rajindere Singh v.
State of Punjab (2015) 6 SCC 477: [2015] 2 SCR 835
– relied on.
F Seaford Court Estates Ltd. v. Asher (1949) 2 ALL ER
155 (CA) – referred to.
6.1 It cannot, however, be said that the NDPS Act, being a
penal statute, in contradistinction to the Customs Act and the
Central Excise Act, whose dominant object is to protect the
G revenue of the State, judicial interpretation of powers of
investigation under those Acts, which are almost identical to the
powers of investigation of an officer under the NDPS Act, would
not be relevant to investigation under the NDPS Act. [Para
193][832-D-F]
H
TOFAN SINGH v. STATE OF TAMIL NADU 615

6.2 It is true that an enquiry under the Central Excise Act, A
1944 or the Customs Act 1962 is a judicial proceeding within the
meaning of Sections 193 and 198 of the Penal Code, by virtue of
Section 14(4) of the Central Excise Act and Section 108(4) of the
Customs Act, which are identical provisions and read “Every such
inquiry as aforesaid shall be deemed to be a judicial proceeding
B
within the meaning of Section 193 and Section 228 of the Indian
Penal Code (Act 45 of 1860)” Section 40(4) of FERA and Section
9(4) of the Railway Property (Unlawful Possession Act) 1966 are
also identical to and/or verbatim reproductions of Section 14(4)
of the Central Excise Act and Section 108(4) of the Customs Act.
[Para 209][858-E-G] C
6.3 An offence punishable with imprisonment under the
Central Excise Act, the Customs Act, the FERA, the Railway
Property (unlawful possession) Act or any other similar enactment
is triable by the Court of competent jurisdiction. Investigation
into offences under these Acts termed as inquiry, are held by D
departmental officials duly authorized to enable the concerned
authorities to decide whether a complaint should be filed before
the Competent Court. If the information gathered and/or materials
obtained so warrant, a complaint is filed. [Paras 211 and 212][859-
E-G]
E
6.4 An inquiry under the Central Excise Act by any Central
Excise Officer, empowered by the Central Government, or under
the Customs Act, by any officer of customs empowered by general
or special order of the Principal Commissioner/Commissioner of
Customs or under the FERA by an Enforcement Officer or under
the Railway Property (Unlawful Possession) Act 1961 by an officer F
of the Railway Protection Force is not the same as a proceeding
in a Court of Law or Tribunal. Such an inquiry is preliminary to
trial by a Court of competent jurisdiction. It is akin to an enquiry
conducted by a public servant under any other law with penal
provisions including an enquiry under the NDPS Act. [Para G
213][859-G-H; 860-A]
6.5 Investigation under these Acts have been given the
status of judicial proceedings within the meaning of Sections 193
and 228 of the IPC, unlike investigation of an offence under the
NDPS Act. The only difference is that the person making a H
616 SUPREME COURT REPORTS [2020] 12 S.C.R.

A statement in an investigation under any of these Acts, is burdened
with the consequences of giving false evidence in any other judicial
proceedings including proceedings in a Court of Law, punishable
with imprisonment which may extend to three years and also
fine [Section 193 IPC] or of intentional insult or interruption to a
public servant at any stage of a “judicial proceeding” punishable
B
with imprisonment which might extend to six months or with fine
or both [Section 228 IPC]. [Para 214][860-B-D]
6.6. Since investigation under the Acts referred to above,
namely the Central Excise Act, the Customs Act, the Railway
Property (Unlawful Possession) Act has been given the status of
C judicial proceedings to deter persons from making false
statements or otherwise intentionally hampering the
investigation, the Legislature has deemed it appropriate to use
the expression “shall have power to summon any person whose
presence he considers necessary either to give evidence or to
D produce a document”. [Para 215][860-D-E]
6.7 The so called ‘evidence’ in the inquiry is not the same
as evidence in a trial. Documents would still have to be tendered
and proved at the time of trial. Whether any documents and/or
statements obtained in course of investigation would at all be
E admissible in evidence at the trial and if so, the extent to which
they would be relevant, would be decided by the Court trying the
offence, having regard to the applicable law. [Para 216][860-F-G]
6.8 It is true that an Inquiry or investigation under the NDPS
Act is not a judicial proceeding, just as an Inquiry or investigation
F by the police under the Cr.P.C. is not a judicial proceeding.
However, a casual observation in a judgment of this Court, that
“a police officer never acts judicially” in the context of an analysis
of the reasons for inclusion of Section 25 of the Evidence Act,
under which no confession to a police officer is to be proved as
against a person accused of any offence, cannot be construed to
G lay down the proposition of law, that a confessional statement
made to an officer in course of an enquiry before that officer cannot
be tendered or proved in evidence, if the enquiry is not a judicial
proceeding. Nor can such an observation be construed as a

H
TOFAN SINGH v. STATE OF TAMIL NADU 617

reverse proposition that all confessions in an enquiry before an A
officer, who is not police officer, but deemed to be a police officer
for all purposes, with all the powers of a police officer including
the power akin to Section 173(2) of the Cr.P.C, can be tendered
and proved in evidence, only because the enquiry is a judicial
proceeding within the meaning of Section 193 or 228 of the IPC,
B
in the sense that a person intentionally giving false evidence in
such proceeding, or intentionally insulting or causing interruption
to a person holding such an enquiry is punishable with
imprisonment. [Para 217][860-H; 861-A-D]
6.9 The fact that the provisions of Chapter V of the NDPS
Act, which confer powers of entry, search, seizure, arrest, C
investigation and inquiry on certain officers, do not expressly
use the phrase “collect evidence” is not really material to the
issue of whether such officers are police officers to attract the
bar of Section 25 of the Evidence Act. [Para 219][861-F]
6.10 It is difficult to appreciate how the fact that an inquiry D
under the Central Excise Act or the Customs Act or the FERA
or any other Act which might be deemed to be a judicial
proceeding to attract the penal provisions of Sections 193 and
228 of IPC, should make any difference to the admissibility in
evidence, of the statements made in an enquiry under the NDPS E
Act. [Para 222][862-B-C]
6.11 It is true that all offences under the NDPS Act are
cognizable under Section 37 of the NDPS Act. Some of the
offences under the Central Excise Act and the Customs Act are
also cognizable. Even though offences under the Railway Property F
(Unlawful Possession) Act are not cognizable, Section 6 of the
said Act empowers any superior officer or member of the Railway
Protection Force to arrest any person concerned with an offence
under the said Act, without an order from a Magistrate and without
a warrant. [Para 223][862-C-E]
G
6.12 Section 25 of the Evidence Act does not differentiate
between evidence in a trial for non cognizable offence and
evidence in a trial for cognizable offence. The admissibility of
evidence does not depend on whether an offence is ‘cognizable’

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618 SUPREME COURT REPORTS [2020] 12 S.C.R.

A or non-cognizable’. The mere fact that an offence was cognizable,
enabling the police to arrest without warrant, should not make
any difference to the admissibility or the probative value of the
evidence adduced by the prosecution during the trial of the
offence. [Para 224][862-F-G]
B 6.13 Some of the offences under the Central Excise Act
and the Customs Act are also cognizable. It may also be pertinent
to point out that while all offences under the NDPS Act including
those punishable with imprisonment up to one year are cognizable,
offences in the Railway Property (Unlawful possession) Act 1966,
punishable with imprisonment of seven years, have been made
C non cognizable. [Para 225][862-G-H; 863-A]
6.14 There can be no doubt that the mandatory provisions
of the NDPS Act to ensure fair trial of the accused must be
enforced. However, over-emphasis on the principles of natural
justice in drug-trafficking cases can be a major hindrance to the
D apprehension of offenders. In offences under the NDPS Act,
substantial compliance should be treated as sufficient for the
procedural requirements, because such offences adversely affect
the entire society. [Para 226][863-A-C]
Union of India v. Padam Narain Aggarwal and Ors.
E (2008) 13 SCC 305 : [2008] 14 SCR 179 ; K. I.
Pavunny v. Assistant Collector (H.Q.) Central Excise
Collectorate, Cochin (1997) 3 SCC 721 : [1997] 1 SCR
797 ; N. J. Sukhawani v. Union of India AIR 1996 SC
522 : [1995] 4 Suppl. SCR 778 – referred to.
F 7.1 There can be no doubt at all, that the right to a fair trial,
encompassing fair procedure is guaranteed under Article 21 of
the Constitution of India. It is too late in the day to contend
otherwise. The safeguards provided in a statute, are always
scrupulously to be adhered to, more so when the punishment is
G very severe. However, each case has to be decided taking into
account all relevant factors, particularly, the evidence against the
accused. [Para 51][770-B-C]
7.2 While the right to a fair trial by an impartial Court and/
or Tribunal is a human right under the UDHR and an essential
H
TOFAN SINGH v. STATE OF TAMIL NADU 619

concomitant of the fundamental rights, at the same time, the A
fairness of trial has to be seen not only from the point of view of
the accused, but also from the point of view of the victim and the
society. A crime under the NDPS Act is a crime against society
and not just an individual or a group of individuals. While the
safeguards in the NDPS Act must scrupulously be adhered to
B
prevent injustice to an accused, the Court should be vigilant to
ensure that guilty offenders do not go scot free by reason of over
emphasis on technicalities. Substantial justice must be done.
Every piece of evidence should be objectively scrutinized,
evaluated and considered to arrive at a final decision. [Para
233][867-B-E] C
7.3 Article 20(3) of the Constitution gives protection to a
person: (i) accused of an offence (ii) against compulsion “to be a
witness” and (iii) against himself. Compulsion is an essential
ingredient of the bar of Article 20(3) of the Constitution. Article
20(3) does not bar the admission of a statement, confessional in D
effect, which is made without any inducement, threat or promise,
even though it may have subsequently been retracted. The Article
also does not debar the accused from voluntarily offering himself
to be examined as a witness. The constitutional protection against
compulsion to be a witness is available only to persons “accused
of an offence”, and not persons other than the accused. It is a E
protection against compulsion to be a witness and it is a protection
against compulsion resulting in giving evidence against himself.
[Paras 234 and 235][867-E-G]
Balkishan A Devidayal vs State of Maharashtra (1980)
4 SCC 600 : [1981] 1 SCR 175 ; Nandini Satpathy v. F
P.L.Dani and Anr. (1978) 2 SCC 424 : [1978] 3 SCR
608 – relied on.
7.4 Compulsion may be in many forms. It may be physical
or mental. However, mental compulsion takes place when the
mind has been so conditioned by some extraneous process, as to G
render the making of the statement involuntary and therefore,
extorted. Statements obtained by continuous and prolonged
interrogation for hours at a stretch in unhealthy, unhygienic,
uncomfortable and inconvenient conditions, without proper food,
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620 SUPREME COURT REPORTS [2020] 12 S.C.R.

A drinking water, washroom facilities etc. may not be accepted as
voluntary. [Para 238][868-D-F]
State of Bombay v. Kathi Kalu Oghad AIR 1961 SC
1808 : [1962] SCR 10 ; Poolpandi and Ors. v.
Superintendent Central Excise and Ors. AIR 1992 SC
B 1795 : [1992] 3 SCR 247 – relied on.
7.5 The immunity under Article 20(3) does not extend to
compulsory production of documents or material objects or to
compulsion to give specimen writing, specimen signature, thumb
impression, finger prints or blood samples. However, compulsion
C regarding documents attracts the bar of Article 20(3) if the
documents convey personal knowledge of the accused relating
to the charge. [Para 239][868-F-G]
Mohamed Dastagir v. State of Madras AIR 1960 SC
756 : [1960] SCR 116 ; State of Bombay v. Kathi Kalu
D Oghad 1961 SC 1808 ; Sampath Kumar v. Enforcement
Office, Enforcement Directorate, Madras 1997 8 SCC
358 : [1997] 4 Suppl. SCR 142 – relied on.
7.6 There can be no doubt that any confession made under
compulsion to any person whether or not a police officer would
E attract Article 20(3) of the Constitution. Any confession made
under compulsion would also be hit by Section 24 of the Evidence
Act. Confession under compulsion is no evidence in the eye of
law. [Para 241][869-C-D]
7.7 A confessional statement, if not obtained by compulsion,
F as judicially explained, would be hit by Sections 25 and 26 only if
such statement is made to a police officer (Section 25 of the
Evidence Act) or while in the custody of a police officer and not
in the presence of a Magistrate (Section 26 of the Evidence
Act). Section 25 would only apply to a police officer or an officer
who exercises all the powers of a police officer including the power
G of filing a police report under Section 173 of the Cr.PC. An officer
under the NDPS Act does not have the power to file a police
report under Section 173 of the Cr.P.C. [Para 242][869-D-F]

H
TOFAN SINGH v. STATE OF TAMIL NADU 621

Badku Joti Savant v. State of Mysore AIR 1966 SC 1746 A
: [1966] SCR 698 ; Romesh Chandra Mehta v. State of
West Bengal AIR 1970 SC 940: [1969] SCR 461 –
followed.
7.8 A confessional statement does not automatically result
in the conviction of an accused offender. Such statements have B
to be tendered and proved in accordance with the law. The
evidentiary value of the statement which is confessional in nature
has to be weighed and assessed by the Court at the trial. [Para
243][869-F-G]
K. S. Puttaswamy and Anr. v. Union of India and Ors. C
(2017) 10 SCC 1 : [2017] 10 SCR 569 ; Maneka
Gandhi v. Union of India AIR 1978 SC 597 : [1978] 2
SCR 621 - referred to.
8.1 A Statute is an edict of the legislature and has to be
construed according to “the intent of those that make it”. If a D
statutory provision is open to more than one interpretation, the
Court has to choose that interpretation which represents the true
intention of the legislature. It is to be presumed that in enacting
a post constitutional law the legislative intent could not have been
to violate any fundamental right. [Paras 244 and 245][870-A-B]
E
Vishnu Pratap Sugar Works Pvt. Ltd. v. Chief Inspector
of Stamp, U.P. AIR 1968 SC 102 : [1967] SCR 920 –
relied on.
8.2 In ascertaining the intention of the legislature the Court
is to examine two aspects, the meaning of the words and phrases F
used in the statute and the purpose and object or the reason and
spirit pervading through the statute. Legislative intention, that
is the true legal meaning of an enactment, is deduced by
considering the meaning of the words used in the enactment, in
the light of any discernible purposes or object of the enactment.
When any question arises as to the meaning of any provision in a G
statute, it is proper to read that provision in the context of the
intention of the legislature. The intention of the Legislature must
be found by reading the statute as a whole. [Paras 246 and
247][870-C-E]
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622 SUPREME COURT REPORTS [2020] 12 S.C.R.

A 8.3 A statute or any statutory provision must be construed
and interpreted in a manner that makes the statute effective and
operative on the principle expressed in the maxim ut res magis
valeat quam pereat and/or in other words, the principle that courts
while pronouncing on the constitutionality of a statute starts with
the presumption in favour of constitutionality and prefer a
B
construction which keeps the statute within the competence of
the legislature. [Para 248][870-E-F]
8.4 Thus when a statute is vague, the Court will give such
an interpretation that keeps the statute in conformity with the
fundamental rights. Similarly, if a statute is capable of two
C interpretations one of which violates the fundamental rights and
the other of which protects the fundamental rights the court would
opt for the latter. [Para 249][870-F-G]
8.5 When a statutory provision is clear and there is no
ambiguity, this Court cannot alter that provision by its
D interpretation. To do so, would be to legislate, which this Court
is not competent to do. If a provision is free from ambiguity or
vagueness, and is clear, but violative of a fundamental right, the
Court will have to strike the same down. Any omission in a statute
cannot be filled in by Court as to do that would amount to the
E legislation and not construction. The Court cannot fill in casus
omissus and language permitting Court should avoid creating casus
omissus where there is none. In the interpretation of statute the
Courts must always presume that legislature inserted every part
thereof for a purpose and the legislative intention is that every
part of the statute should have effect. [Para 250][870-G-H; 871-
F A-B]
9.1 There is no doubt that the NDPS Act contains severe
penal provisions. There can also be no dispute with the
proposition that when harsh provisions, lead to a severe sentence,
a balance has to be struck between the need of the law and
G enforcement thereof on the one hand and the protection of a
citizen from oppression and injustice. The requirements of Section
42 and 43 have to be complied with strictly and in letter and spirit.
[Para 252][871-C-E]

H
TOFAN SINGH v. STATE OF TAMIL NADU 623

Directorate of Revenue and Another v. Mohammed A
Nisar Holia (2008) 2 SCC 370 : [2007] 12 SCR 906
– relied on.
9.2 There can be no quarrel with the proposition that the
power of search, seizure and arrest is founded upon the competent
officer duly empowered having “reason to believe”, which might B
be based on personal knowledge, or secret information provided
by an informant whose name need not be disclosed. [Para
253][871-E-F]
9.3 An inquiry/investigation under the NDPS Act does not
culminate in any report. The inquiry is in the nature of a C
preliminary inquiry which may lead to the filing of a complaint in
the Special Court. The Prosecution has to prove its case before
the Special Court which would examine, analyze, assess and weigh
the evidence on record. Suspicion can in no circumstances be a
substitute for evidence. The severer the punishment for the
offence, the stricter is the degree of proof. All the safeguards D
provided in the NDPS Act must be scrupulously followed. [Para
256][872-B-D]
State of Punjab v. Baldev Singh (1999) 6 SCC 172 :
[1999] 3 SCR 977 ; Ritesh Chakaravarty v. State of
Madhya Pradesh (2006) 12 SCC 321 : [2006] 6 Suppl. E
SCR 772 – relied on.
10.1 The proposition of law laid down by the Constitution
Benches is that, the test to determine whether an officer is
deemed to be a police officer within the meaning of Section 25 of
the Evidence Act is, whether such officer has all the powers of a F
police officer including the power to file a report under Section
173 of the Cr.P.C. Therefore, the question of whether in reality
or substance there is any difference between a complaint under
Section 36A(1)(d) of the NDPS Act filed by an authorized officer
of the Central Government or the State Government and a police G
report filed under Section 173 of the Cr.P.C, cannot be decided
by this Bench of three-Judges in view of three five-Judge
Constitution Bench judgments which are binding on this Bench.
[Paras 263 and 264][873-D-F]

H
624 SUPREME COURT REPORTS [2020] 12 S.C.R.

A 10.2 The question of whether an investigating officer
invested with the powers of Officer in Charge of a police station
for the purpose of investigation of an offence under a special Act
like the NDPS Act is empowered to file a police report under
Section 173 of the Cr.P.C cannot also be reopened by this Bench,
in view of five-Judge Constitution Bench judgments. [Para
B
265][873-F-G]
10.3 A statute may expressly make Section 173 of the Cr.P.C
applicable to inquiries and investigations under that statute.
However, in the case of a statute like the NDPS Act, where the
provisions of the Cr.P.C do not apply to any inquiry/investigation,
C except as provided therein, it cannot be held that the officer has
all the powers of a police officer to file a report under Section 173
of the Cr.P.C. The NDPS Act does not even contain any provision
for filing a report in a Court of law which is akin to a police report
under Section 173 of the Cr.P.C. [Para 267][874-B-C]
D 10.4 As per the norms of judicial discipline and propriety, a
Bench of lesser strength cannot revisit the proposition laid down
by at least three Constitution Benches, that an officer can be
deemed to be a police officer within the meaning of Section 25 of
the Evidence Act only if the officer is empowered to exercise all
E the powers of a police officer including the power to file a report
under Section 173 of the Cr.P.C. [Para 268][874-D-E]
10.5 Therefore, the provisions of the Cr.P.C do not apply
to an inquiry/investigation under the NDPS Act except to the
limited extent provided in Section 50(5) and 51. Section 173 of
F the Cr.P.C has not been made applicable to the NDPS Act. [Para
270][874-F-G]
11. The Judgment of this Court in *Raj Kumar Karwal case
which has reaffirmed the verdict of three Constitution Benches
does not require reconsideration. Nor does **Kanhaiyalal case
G require reconsideration. [Para 271][874-G-H]
*Raj Kumar Karwal v. Union of India (1990) 2 SCC
409 : [1990] 2 SCR 63 ; **Kanhaiyalal v. Union of
India (2008) 4 SCC 668 : [2008] 1 SCR 350 – relied
on.
H
TOFAN SINGH v. STATE OF TAMIL NADU 625

Noor Aga v. State of Punjab and Anr. (2008) 16 SCC A
417 : [2008] 10 SCR 379 – referred to.
Case Law Reference
In the judgment of R.F. Nariman, J.
[2013] 9 SCR 962 referred to Para 1 B
(2001) 9 SCC 578 referred to Para 2
[1996] 10 Suppl. SCR 284 referred to Para 10
[1954] SCR 1077 followed Para 14
[1963] 2 SCR 10 followed Para 17 C
[1961] 1 SCR 14 followed Para 17
[1978] 3 SCR 608 relied on Para 20
[2017] 10 SCR 569 followed Para 25
[1954] SCR 1077 stood overruled Para 25 D
[1961] 1 SCR 14 relied on Para 31
[1966] 1 SCR 134 relied on Para 32
[2008] 1 SCR 281 relied on Para 34
E
[2004] 3 SCR 44 relied on Para 46
[2010] 13 SCR 255 referred to Para 49
[1999] 3 Suppl. SCR 174 followed Para 48
[1999] 3 Suppl. SCR 174 followed Para 55
F
[2009] 5 SCR 205 relied on Para 56
[1982] 1 SCR 629 relied on Para 59
[1979] 3 SCR 373 referred to Para 60
[1965] 3 SCR 86 held not applicable Para 65
G
[1959] Supp (2) SCR 875 followed Para 66
[2018] 9 SCR 1006 referred to Para 73
(2004) 5 SCC 223 referred to Para 73

H
626 SUPREME COURT REPORTS [2020] 12 S.C.R.

A [1955] 1 SCR 1150 relied on Para 77
[1959] Supp. 2 SCR 201 relied on Para 77
[1962] 3 SCR 338 referred to Para 87
[1964] 2 SCR 752 referred to Para 97
B [1966] 3 SCR 698 referred to Para 106
[1969] 2 SCR 461 referred to Para 111
[1969] 2 SCR 613 referred to Para 113
[1975] 1 SCR 881 referred to Para 116
C
[1981] 1 SCR 175 referred to Para 119
[1997] 2 Suppl. SCR 234 referred to Para 124
[1990] 2 SCR 63 overruled Para 128
[1994] 2 SCR 375 referred to Para 150
D
[2008] 1 SCR 350 overruled Para 153
[2008] 10 SCR 379 relied on Para 154
[2011] 9 SCR 446 relied on Para 154
In the judgment of Indira Banerjee, J.
E
[2008] 10 SCR 379 referred to Para 37
[2004] 3 SCR 44 relied on Para 60
[1976] 3 SCR 956 relied on Para 61

F AIR 1960 SC 490 held inapplicable Para 83
[1998] 2 SCR 303 held inapplicable Para 83
[2001] 4 Suppl. SCR 25 held inapplicable Para 84
[2009] 13 SCR 378 referred to Para 86
G [1966] SCR 31 relied on Para 91
(2001) 1 SCC 78 referred to Para 91
[2003] 2 Suppl. SCR 445 referred to Para 149
[2000] 5 Suppl. SCR 408 referred to Para 150
H [1962] SCR 338 relied on Para 158
TOFAN SINGH v. STATE OF TAMIL NADU 627

[1964] SCR 752 referred to Para 160 A
[1966] SCR 698 followed Para 165
[1969] SCR 461 followed Para 167
[1969] SCR 613 followed Para 168
[1975] 1 SCR 881 relied on Para 170 B
[1981] 1 SCR 175 relied on Para 171
[1990] 2 SCR 63 relied on Para 172
[2008] 1 SCR 350 relied on Para 174
C
(2001) 9 SCC 578 referred to Para 181
[1999] 3 SCR 897 relied on Para 182
[2015] 2 SCR 835 followed Para 188
[1963] Suppl. SCR 724 followed Para 188
D
[2005] 1 Suppl. SCR 49 relied on Para 189
[2003] 3 Suppl. SCR 24 relied on Para 190
[2004] 1 SCR 378 relied on Para 191
[2015] 2 SCR 835 relied on Para 192
E
[2008] 14 SCR 179 referred to Para 202
[1997] 1 SCR 797 referred to Para 203
[1995] 4 Suppl. SCR 778 referred to Para 203
[2017] 10 SCR 569 referred to Para 231 F
[1978] 2 SCR 621 referred to Para 232
[1981] 1 SCR 175 relied on Para 236
[1978] 3 SCR 608 relied on Para 236
[1962] SCR 10 relied on Para 238 G
[1992] 3 SCR 247 relied on Para 238
[1960] SCR 116 relied on Para 239
1961 SC 1808 relied on Para 239
[1997] 4 Suppl. SCR 142 relied on Para 240 H
628 SUPREME COURT REPORTS [2020] 12 S.C.R.

A [1966] SCR 698 followed Para 242
[1969] SCR 461 followed Para 242
[1967] SCR 920 relied on Para 244
[2007] 12 SCR 906 relied on Para 252
B [1999] 3 SCR 977 relied on Para 255
[2006] 6 Suppl. SCR 772 relied on Para 256
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 152 of 2013.
C From the Judgment and Order dated 18.06.2012 of the High Court
of Judicature at Madras in Criminal Appeal No. 8 of 2010.
With
Criminal Appeal Nos. 1750 of 2009, 2214 of 2009, 827 of 2010,
835 of 2011, 836 of 2011, 344 of 2013, 1826 of 2013, 433 of 2014, 77 of
D 2015, 90 of 2017, 91 of 2017, Special Leave Petition (Crl.) 6338 of 2015
& 1202 of 2017 .
Aman Lekhi, ASG, Saurabh Mishra, AAG, Sushil Kumar Jain,
Anand Grover, S. Nagamuthu, A. K. Srivastava, R. Balasubramanian,
Sr. Advs., Puneet Jain, Ms. Christi Jain, Harsh Jain, Harshit Khanduja,
E Ms. Pratibha Jain, Mrs. Kanchan Kaur Dhodi, Uday Gupta, Ms. Shivani
M. Lal, Hiren Dasan, M. K. Tripathi, Chand Qureshi, Mohan
Pandey,Sanjay Jain, Vinay Arora, Mrs. K. Sarada Devi, Ranjan Kumar,
Nachiketa Joshi, Ms. Sucheta Joshi, Ms. Himadri Haksar, Abhishek Singh,
Shreshth Arya, Amit Bhalla, Satbir Singh Pillania, Tripati Tandon, Sandiv
F Kalia, Somvir Deswal, Ms. Reena Rao, Arun Kumar Singh, Nand Ram,
Dr. Sushil Balwada, Prabu Ramasubramanian, Raghunatha Sethupathy,
Karuppaiah Meyyappan, Hardik Gautam, K. Paari Vendhan, Kuldip Singh,
Shreeyash, Ms. Jaspreet Gogia, Aniruddha P. Mayee, Ms. Ranjana
Narayan, Harish Pandey, Akshay Amritanshu, Ritwiz Ribhav, B. Krishna
Prasad, Mrs. Anil Katiyar, Vibhu Shankar Mishra, Ms. Suhashini Sen,
G B. V. Balaram Das, Manish Vashishtha, Ms. Liz Mathew, C. K. Sasi,
Saurabh Kirpal, Sanjay Agarwal, Ashish Batra, Amit K. Nain, Arjun
Garg, Shrutika Garg, John Mathew, Vinod Kumar, Advs. for the appearing
parties.

H
TOFAN SINGH v. STATE OF TAMIL NADU 629

The Judgments of the Court were delivered by A
R. F. NARIMAN, J.*
1. These Appeals and Special Leave Petitions arise by virtue of a
reference order of a Division Bench of this Court reported as Tofan
Singh v. State of Tamil Nadu (2013) 16 SCC 31. The facts in that
appeal have been set out in that judgment in some detail, and need not be B
repeated by us. After hearing arguments from both sides, the Court
recorded that the Appellant in Criminal Appeal No.152 of 2013 had
challenged his conviction primarily on three grounds, as follows:
“24.1. The conviction is based solely on the purported confessional
statement recorded under Section 67 of the NDPS Act which has no C
evidentiary value inasmuch as:
(a) The statement was given to and recorded by an officer who is
to be treated as “police officer” and is thus, hit by Section 25 of
the Evidence Act.
D
(b) No such confessional statement could be recorded under
Section 67 of the NDPS Act. This provision empowers to call for
information and not to record such confessional statements. Thus,
the statement recorded under this provision is akin to the statement
under Section 161 CrPC.
E
(c) In any case, the said statement having been retracted, it could
not have been the basis of conviction and could be used only to
corroborate other evidence.”
2. Under the caption “Evidentiary value of statement under section
67 of the Narcotic Drugs and Psychotropic Substances, Act, 1985 (“NDPS
F
Act”)”, the Court noted the decisions of Raj Kumar Karwal v. Union
of India (1990) 2 SCC 409 and Kanhaiyalal v. Union of India (2008)
4 SCC 668, as also certain other judgments, most notably Abdul Rashid
v. State of Bihar (2001) 9 SCC 578 and Noor Aga v. State of Punjab
(2008) 16 SCC 417, and thereafter came to the conclusion that the NDPS
Act, being a penal statute, is in contradistinction to the Customs Act, G
1962 and the Central Excise Act, 1944, whose dominant object is to
protect the revenue of the State, and that therefore, judgments rendered
in the context of those Acts may not be apposite when considering the
NDPS Act– see paragraph 33. After then considering a number of other
*Ed. Note : Judgment delivered by R. F. Nariman, J. (for himself and Navin Sinha, J.) H
630 SUPREME COURT REPORTS [2020] 12 S.C.R.

A judgments, the referral order states that a re-look into the ratio of Raj
Kumar Karwal (supra) and Kanhaiyalal (supra)would be necessary,
and has referred the matter to a larger Bench thus:
“41. For the aforesaid reasons, we are of the view that the matter
needs to be referred to a larger Bench for reconsideration of the
B issue as to whether the officer investigating the matter under the
NDPS Act would qualify as police officer or not.
42. In this context, the other related issue viz. whether the
statement recorded by the investigating officer under Section 67
of the Act can be treated as confessional statement or not, even if
C the officer is not treated as police officer also needs to be referred
to the larger Bench, inasmuch as it is intermixed with a facet of
the 1st issue as to whether such a statement is to be treated as
statement under Section 161 of the Code or it partakes the
character of statement under Section 164 of the Code.
D 43. As far as this second related issue is concerned we would
also like to point out that Mr Jain argued that the provisions of
Section 67 of the Act cannot be interpreted in the manner in which
the provisions of Section 108 of the Customs Act or Section 14 of
the Excise Act had been interpreted by a number of judgments
and there is a qualitative difference between the two sets of
E provisions. Insofar as Section 108 of the Customs Act is concerned,
it gives power to the custom officer to summon persons “to give
evidence” and produce documents. Identical power is conferred
upon the Central Excise Officer under Section 14 of the Act.
However, the wording to Section 67 of the NDPS Act is altogether
F different. This difference has been pointed out by the Andhra
Pradesh High Court in Shahid Khan v. Director of Revenue
Intelligence [2001 Cri LJ 3183 (AP)].”
3. Shri Sushil Kumar Jain, learned Senior Advocate appearing for
the Appellants in Criminal Appeal Nos. 152 of 2013; 836 of 2011; 433 of
G 2014; 77 of 2015 and 1202 of 2017, outlined six issues before us, which
really boil down to two issues, namely:
“1. Whether an officer “empowered under Section 42 of the NDPS
Act” and/or “the officer empowered under Section 53 of the NDPS
Act” are “Police Officers” and therefore statements recorded by
such officers would be hit by Section 25 of the Evidence Act; and
H
TOFAN SINGH v. STATE OF TAMIL NADU 631
[R. F. NARIMAN, J.]

2. What is the extent, nature, purpose and scope of the power A
conferred under Section 67 of the NDPS Act available to and
exercisable by an officer under section 42 thereof, and whether
power under Section 67 is a power to record confession capable
of being used as substantive evidence to convict an accused?”
4. Shri Jain took us through the provisions of the NDPS Act which, B
according to him, is a special Act, and a complete code on the subject it
covers. He referred to how the NDPS Act sometimes overrides the
Code of Criminal Procedure, 1973 (“CrPC”); sometimes says that it is
applicable; and sometimes states that it is made applicable with necessary
modifications. According to Shri Jain, section 41(2) and section 42 of the
NDPS Act refer to a ‘First Information Report’ being lodged by the C
officers referred to therein. As the source of information is required to
be kept a secret under section 68 of the NDPS Act, the officer receiving
information under these provisions is therefore treated as an informant.
The tasks assigned to officers under section 42 of the NDPS Act are
four in number, namely, entry, search, seizure or arrest. As opposed to D
this, section 53 of the NDPS Act invests the designated officers with all
the powers of an ‘officer-in-charge of a police station’ for the process
of investigation, which would then begin after information collected by a
section 42 officer is handed over to the officer designated under section
53, and end with a final report being submitted under section 173 of the
CrPC to the Special Court under section 36A(1)(d) of the NDPS Act. E
According to the learned Senior Advocate, section 67 is to be read only
with section 42, and is a power to call for information so that the “reason
to believe” mentioned in section 42 can then be made out, without
proceeding further under the NDPS Act. Thus, “reason to believe”, which
is at a higher threshold than “reason to suspect” – which phrase has F
been used in section 49 of the NDPS Act –is a condition precedent to
the officer thereafter moving forward. Shri Jain argued that the reason
to believe must be formed before the officer acts, and that therefore,
section 67 operates at a stage antecedent to the exercise of the powers
of the officer designated under section 42. He then went on to argue
that these provisions must be construed strictly in favour of the subject, G
inasmuch as they impinge upon the fundamental right to privacy, recently
recognised by this Court in K.S. Puttaswamy and Anr. v. Union of
India and Ors. (2017) 10 SCC 1. He also argued that the NDPS Act
therefore incorporates a legislative balance between powers of
H
632 SUPREME COURT REPORTS [2020] 12 S.C.R.

A investigation and the obligation to uphold privacy rights of the individual.
He then went on to argue that the “information” under section 67 of the
NDPS Act cannot be equated with “evidence”, which is only evidence
before a court, as per the definition of “evidence” under the Indian
Evidence Act, 1872 (“Evidence Act”). He cited judgments to show
that even witness statements made under section 164 of the CrPC are
B
not substantive evidence. He then contrasted section 67 of the NDPS
Act with the power of officers under revenue acts to record evidence,
such as section 108 of the Customs Act 1962, and section 14 of the
Central Excise Act 1944. He then went on to state that as none of the
safeguards contained in sections 161-164 of the CrPC are contained in
C the NDPS Act when the person is examined under section 67, obviously
statements made to officers under section 67 cannot amount to substantive
evidence on the basis of which conviction can then take place. An
important argument was that it would be highly incongruous if an officer
of the police department, empowered under section 42 and exercising
the same powers under section 67, records a confessional statement
D
which would be hit by section 25 of the Evidence Act, whereas officers
exercising the same powers under the NDPS Act, who are not regular
policemen, would be able to record confessional statements, and bypass
all constitutional and statutory safeguards. Shri Jain contended that as
the provisions of the NDPS Act are extremely stringent, they must be
E strictly construed, and safeguards provided must be scrupulously followed.
According to him, arbitrary power conferred under section 67 upon an
officer above the rank of peon, sepoy or constable, but denied to a senior
officer under section 53, would be ex facie contrary to Article 14 of the
Constitution. On the other hand, section 53 statutorily confers powers
on the named officer of an officer-in-charge of a police station for the
F
investigation of the offences under the NDPS Act. This, according to
the learned counsel, would contain the entire gamut of powers contained
in sections 160-173 of the CrPC, including the power to then file a
charge-sheet before the Special Court under section 36A(1)(d) of the
NDPS Act. The learned counsel argued that section 53A of the NDPS
G Act shows that confessional statements that are made under section
161 of the CrPC, which are otherwise hit by section 162 of the CrPC,
are made relevant only in the two contingencies mentioned under section
53A of the NDPS Act, being exceptions to the general rule stated in
section 162 of the CrPC. He contended, therefore, that section 67 of the
NDPS Act cannot be used to bypass section 53A therein and render it
H
TOFAN SINGH v. STATE OF TAMIL NADU 633
[R. F. NARIMAN, J.]

otiose. He stressed the fact that all offences under the NDPS Act are A
cognizable offences, unlike under revenue statutes like the Customs Act,
1962 and Central Excise Act, 1944, and then argued that the “complaint”
that is referred to in section 36A(1)(d) of the NDPS Act has only
reference to a complaint filed under section 59(3) therein. He also pointed
out the anomalies of granting to the concerned officer under section 53
B
all the powers of the officer-in-charge of a police station, which, unless
it ends up in the form of a final report, would leave things hanging. Thus,
if the concerned officer finds that there is no sufficient evidence, and
that the accused should be released, section 169 of the CrPC would
apply. In the absence of section 169 of the CrPC, as has been contended
by the other side, there is no procedure for discharge of the accused if C
evidence against him is found to be wanting. In a without-prejudice
argument that complaints under the NDPS Act can be made outside of
section 59(3), Shri Jainstressed the fact that there is in reality and
substance no difference between the “complaint” under the NDPS Act
and the charge-sheet under the CrPC, as investigation has already been
D
carried out even before the complaint under the NDPS Act is made. He
therefore argued that both Raj Kumar Karwal (supra) and Kanhaiyalal
(supra) require to be overruled by us, as they erroneously applied earlier
judgments which concerned themselves with revenue statutes, and not
penal statutes like the NDPS Act. He then referred us to Article 20(3)
of the Constitution, and section 25 of the Evidence Act, and cited a E
plethora of case law to drive home the point that in this country, as
coercive methods are used against persons during the course of
investigation, all confessions made to a police officer, whether made
during the course of investigation or even before, cannot be relied upon
as evidence in a trial. He then referred to several judgments of this
F
Court to state that the expression “police officer” is not defined, and the
functional test therefore must apply, namely, that a person who is given
the same functions as a police officer under the CrPC, particularly in the
course of investigating an offence under the Act, must be regarded as a
police officer for the purpose of section 25 of the Evidence Act. In the
course of his submissions, he referred to a number of judgments of this G
Court, and most particularly, the judgments of State of Punjab v. Barkat
Ram (1962) 3 SCR 338; Raja Ram Jaiswal v. State of Bihar (1964) 2
SCR 752; Badku Joti Savant v. State of Mysore (1966) 3 SCR 698;
Romesh Chandra Mehta v. State of West Bengal (1969) 2 SCR
461; Illias v. Collector of Customs, Madras (1969) 2 SCR 613; and
H
634 SUPREME COURT REPORTS [2020] 12 S.C.R.

A Balkishan A. Devidayal v. State of Maharashtra (1980) 4 SCC 600.
He also provided a useful chart of the difference in the provisions
contained in the NDPS Act and the Railway Property (Unlawful
Possession) Act, 1966, the Sea Customs Act, 1878, the Central Excise
Act, 1944, and the Customs Act, 1962.
B 5. Shri Puneet Jain supplemented these arguments with reference
to a recent judgment of a Constitution Bench of this Court in Mukesh
Singh v. State (Narcotic Branch of Delhi) 2020 SCC OnLine SC
700, and stated that as some discordant notes are to be found in that
judgment, it may be referred to a larger Bench. In any case, he argued
that the comments made in that judgment about investigation starting
C from the section 42 stage itself were only in the context of the complainant
and the investigator being the same, in which case, if prejudice was
caused, the trial may be vitiated in terms of the judgment.
6. Shri Anand Grover, learned Senior Advocate, appearing for the
Appellant in Criminal Appeal No. 90 of 2017, followed in the wake of
D the two Jains, père et fils. The learned Senior Advocate stressed the
various provisions of the NDPS Act which showed that it was extremely
stringent, in that it had minimum sentences for even possession of what
is regarded as a “commercial quantity” of a drug or psychotropic
substance, being a minimum sentence of rigorous imprisonment of 10
E years, going up to 20 years.This, coupled with various presumptions raised
against the accused, and stringent bail conditions, all made the NDPS
Act a very stringent measure of legislation, which, the more stringent it
is, must contain necessary safeguards against arbitrary search, seizure
and arrest, or else it would fall foul of the fundamental rights chapter of
the Constitution. He argued that the NDPS Act was penal in nature,
F andcontained regulatory provisions as well, but given the fact that we
are concerned only with the penal provisions, could be distinguished from
the revenue statutes whose dominant object is the collection of revenue,
and not the punishment of crime. He stressed the fact that the “enquiry”
under section 67 of the NDPS Act is not a judicial enquiry, but only a
G preliminary fact-finding exercise before a”reason to believe” is formed
under section 42, which could then lead to investigation of an offence
under the Act. He also referred to section 50 of the NDPS Act, and
stated that given a higher protection as to conditions under which a search
of person may be conducted, it would be inconceivable to then conclude
that under section 67, confessional statements can be recorded without
H
TOFAN SINGH v. STATE OF TAMIL NADU 635
[R. F. NARIMAN, J.]

more, subject to no safeguards whatsoever, on which convictions can A
then be based. He relied strongly on State of Punjab v. Baldev Singh
(1999) 6 SCC 172 and its aftermath Vijaysinh Chandubha Jadeja v.
State of Gujarat (2011) 1 SCC 609 to argue that even after sub-sections
(5) and (6) were added to section 50 of the NDPS Act, they did not
dilute what was contained in section 50(1)-(4), and could only be used in
B
emergent and urgent situations. He referred to statutes like the Terrorist
and Disruptive Activities (Prevention) Act, 1987 (“TADA”), and stated
that where under certain limited circumstances exceptions were made
to section 25 of the Evidence Act, they were hedged in with a number of
safeguards, as were laid down by this Court in Kartar Singh v. State of
Punjab (1994) 3 SCC 569. According to him, therefore, “police officer” C
needs to be construed functionally to include special police officers under
the NDPS Act, in the context of confessions made, with reference to
section 25 of the Evidence Act. He joined Shri Jain in asking for an
overruling of Raj Kumar Karwal (supra) and Kanhaiyalal (supra).
7. Shri S. Nagamuthu, learned Senior Advocate appearing on D
behalf of the Appellant in Criminal Appeal No. 1826 of 2013, referred to
sections 41 to 43 of the NDPS Act, and emphasised the fact that no
powers to “investigate” any offences are vested in the officers mentioned
in these sections. He then referred to section 36 of the CrPC, and said
that the scheme followed in the NDPS Act could be assimilated to section
36, in that, police officers superior in rank to an officer in charge of a E
police station may exercise the same powers, throughout the local area
to which they are appointed, as may be exercised by such officer within
the limits of his station. He emphasised the fact that section 25 of the
Evidence Act only applies to confessions made against the maker, as
against statements recorded under section 161 of the CrPC, which are F
completely barred from being received in evidence under section 162 of
the CrPC, save and except for purposes of contradiction. He argued
that a confessional statement made to a section 41 or section 42
officerwas also hit by section 25 of the Evidence Act. He added that the
special procedure in section 36A of the NDPS Act applies only qua
offences punishable for a term of more than three years, and where G
offences under the Act are punishable for terms up to three years, they
are to be tried by a Magistrate under the CrPC. Obviously, officers
under section 53 of the NDPS Act would investigate an offence under
the Act that is punishable for a term up to three years, and file a police
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636 SUPREME COURT REPORTS [2020] 12 S.C.R.

A report, as no complaint procedure,being the procedure under section
36A of the NDPS Act, would then apply. According to him, this would
show that investigation does culminate in a police report for offences
punishable for a term up to three years, as a result of which section
36A(1)(d) has to be read as providing two methods of approaching a
Special Court – one, by way of a police report, and the other, by way of
B
a complaint to the Special Court.
8. Shri Uday Gupta, learned Advocate appearing on behalf of the
Appellant in Criminal Appeal No. 344 of 2013, supplemented the
arguments of his predecessors, and stressed the fact that the “enquiry”
under section 67 of the NDPS Act cannot possibly be governed by the
C definition of “inquiry” under section 2(g) of the CrPC, as that “inquiry”
relates only to inquiries conducted by a Magistrate or Court. Hence, the
expression “enquiry” under section 67 must be given its ordinary meaning,
which would indicate that it is only a preliminary fact-finding enquiry
that is referred to. He relied strongly on the Directorate of Law
D Enforcement Handbook, in which the Directorate made it clear that
when statements are recorded under section 67 of the NDPS Act by the
police, these would amount to statements under section 161 of the CrPC.
He contended that if this is so, it would be extremely anomalous to have
statements recorded under section 67 by officers other than the police –
mentioned under sections 41 and 42 of the NDPS Act, which are not
E statements made under section 161 of the CrPC – being admissible in
evidence, on which a conviction of an accused can then be based.
9. Shri Gupta was followed by Shri Sanjay Jain, learned Advocate
appearing on behalf of the Appellant in Criminal Appeal No. 1750 of
2009, who supplemented the arguments of his predecessors by referring
F to section 53A, and notifications made under section 53, of the NDPS
Act. He reiterated that officers under section 42 and officers under
section 53 of the NDPS Act perform different functions, and that a
section 53 officer, being empowered to “investigate”, most certainly has
the power to file a police report before the Special Court.
G 10. Shri Aman Lekhi, learned Additional Solicitor General, appearing
on behalf of the Union of India, took us through the NDPS Act, and said,
that read as a whole, it is a balanced statute which protected both the
investigation of crime, as well as the citizen, in that several safeguards
were contained therein. He was at pains to point out that it was not his
H case that a confession recorded under section 67 of the NDPS Act,
TOFAN SINGH v. STATE OF TAMIL NADU 637
[R. F. NARIMAN, J.]

without more, would be sufficient to convict a person accused of an A
offence under the Act. According to him, this could only be done if
section 24 of the Evidence Act was met, and the Court was satisfied
that the confession so recorded was both voluntary and truthful. In any
case, he asserted that the safeguards that have been pointed out in D.K.
Basu v. Union of India (1997) 1 SCC 416 at 435, 436, have now largely
B
been incorporated in Chapter V of the CrPC, which safeguards would
also operate qua confessions recorded under section 67 of the NDPS
Act. According to him, section 67 on its plain language does not refer to
the “information” spoken of in section 42, as it uses the expression
“require” any person to produce or deliver a document, as opposed to
information “called for” from such persons.He also argued, based on C
judgments of this Court, that confessions, if properly recorded, are the
best form of evidence, as these are facts known to the accused, about
which he then voluntarily deposes. He also argued that section 190 of
the CrPC is not completely displaced by section 36A(1)(d) of the NDPS
Act, in that the requirement of the filing of a complaint and/or a police
D
report contained in section 190 continues to apply, in support of the
decision in Raj Kumar Karwal (supra). He then referred in detail to
Badku Joti Savant (supra), and stated that this judgment was not
considered in the reference order, and that finally, the only test that is
laid down by several Constitution Bench judgments to determine whether
a person is or is not a “police officer” is whether such person is given E
the right to file a report under section 173 of the CrPC. He made it clear
that section 53 of the NDPS Act did not deem the officers named therein
to be police officers – they were only given certain powers of
investigation, which did not ultimately lead to filing of a charge-sheet
under section 173 of the CrPC. What was clear was that only a
F
“complaint” could be filed by such officers under section 36A(1)(d) of
the NDPS Act – the police report being only filed by the police force as
constituted under the Police Act, 1861. He disagreed vehemently with
the submission of Shri Jain that the “complaint” under section 36A(1)(d)
would refer only to the complaint under section 59(3) of the NDPS Act,
and referred to section 2(xxix) of the NDPS Act to refer to the definition G
of “complaint” under section 2(d) of the CrPC, which is used in the
same sense as in the CrPC. He then pointed out several provisions in
the NDPS Act, where the word “police” or “police officer” is used in
contrast to the other persons or officers who are part of the narcotics
and other setups. According to him, in any case,section 53A makes an
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638 SUPREME COURT REPORTS [2020] 12 S.C.R.

A inroad into section 25 of the Evidence Act. Equally, according to him, the
majority judgment in Raja Ram Jaiswal (supra) is per incuriam,
inasmuch as it does not consider several provisions of the CrPC, and
therefore, arrives at the wrong test to determine as to who can be said
to be a “police officer” within the meaning of section 25 of the Evidence
Act. In any case, he argued that the officers mentioned in sections 41
B
and 42 of the NDPS Act cannot be tarnished with the same brush as the
regular police, as there is nothing to show that these officers use third-
degree measures to extort confessions. He then referred to the language
of section 67 of the NDPS Act, in which, according to him, the expression
“enquiry” is nothing but an investigation, and the expression”examine”
C is the same expression used in section 161 of the CrPC, which therefore
should be accorded evidentiary value, as no safeguards as provided under
section 162 of the CrPC are mentioned qua statements made under
section 67 of the NDPS Act. He also argued that investigation begins
from the stage of collection of material under section 67, and for this
relied strongly upon the recent Constitution Bench judgment in Mukesh
D
Singh (supra). According to him, therefore, the reference order itself
being flawed, there ought to have been no reference at all, and that the
judgments in Raj Kumar Karwal (supra) and Kanhaiyalal (supra) do
not need reconsideration. Later judgments such as Noor Aga (supra)
ought to be overruled by us, inasmuch as they are contrary to several
E Constitution Bench judgments of this Court.
11. Shri Saurabh Mishra, learned Additional Advocate General
appearing on behalf of the State of Madhya Pradesh in SLP (Crl.) 1202
of 2017, largely reiterated the submissions of learned ASG, adding that
when section 67 of the NDPS Act is used to record the confession of an
F accused, section 164 of the CrPC will not apply, but only section 24 of
the Evidence Act makes such confessions relevant, if the conditions laid
down in the section apply. He also reiterated that a statement recorded
under section 67 of the NDPS Act cannot be assimilated to a statement
under section 161 of the CrPC, for the reasons outlined by the learned
ASG.
G
12. Shri Aniruddha Mayee, learned counsel appearing for the State
of Gujarat in Criminal Appeal No. 2214 of 2009; 344 of 2013; and 1750
of 2009, adopted the submissions of Shri Aman Lekhi, learned ASG.

H
TOFAN SINGH v. STATE OF TAMIL NADU 639
[R. F. NARIMAN, J.]

13. Having heard wide-ranging arguments of counsel on both sides, A
it is first necessary to give a Constitutional backdrop to the points that
arise in this case.
FUNDAMENTAL RIGHTS AND THE NDPS ACT
14. The first most important constitutional protection provided in
the fundamental rights chapter so far as these cases are concerned is B
provided by Article 20(3), which is the well-known right against self-
incrimination. Article 20(3) reads as follows:
“(3) No person accused of any offence shall be compelled to be a
witness against himself.”
C
15. In an early judgment of this Court, M.P. Sharma and Ors. v.
Satish Chandra 1954 SCR 1077, an eight-Judge Bench of this Court
set out Article 20(3), and then went into the historical origin of this Article
in English law. In an important passage, the Court held:
“In view of the above background, there is no inherent reason to D
construe the ambit of this fundamental right as comprising a very
wide range. Nor would it be legitimate to confine it to the barely
literal meaning of the words used, since it is a recognised doctrine
that when appropriate a constitutional provision has to be liberally
construed, so as to advance the intendment thereof and to prevent
its circumvention. Analysing the terms in which this right has been E
declared in our Constitution, it may be said to consist of the
following components. (1) It is a right pertaining to a person
“accused of an offence”; (2) It is a protection against “compulsion
to be a witness”; and (3) It is a protection against such compulsion
resulting in his giving evidence “against himself”.” F
(at page 1086)
xxx xxxxxx
Broadly stated the guarantee in Article 20(3) is against “testimonial
compulsion”.It is suggested that this is confined to the oral
evidence of a person standing his trial for an offence when called G
to the witness-stand. We can see no reason to confine the content
of the constitutional guarantee to this barely literal import. So to
limit it would be to rob the guarantee of its substantial purpose
and to miss the substance for the sound as stated in certain
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640 SUPREME COURT REPORTS [2020] 12 S.C.R.

A American decisions. The phrase used in Article 20(3) is “to be a
witness”. A person can “be a witness” not merely by giving oral
evidence but also by producing documents or making intelligible
gestures as in the case of a dumb witness (See Section 119 of the
Evidence Act) or the like. “To be a witness” is nothing more than
“to furnish evidence” and such evidence can be furnished through
B
the lips or by production of a thing or of a document or in other
modes. So far as production of documents is concerned, no doubt
Section 139 of the Evidence Act says that a person producing a
document on summons is not a witness. But that section is meant
to regulate the right of cross-examination. It is not a guide to the
C connotation of the word “witness”, which must be understood in
its natural sense i.e. as referring to a person who furnishes
evidence. Indeed, every positive volitional act, which furnishes
evidence is testimony, and testimonial compulsion connotes
coercion which procures the positive volitional evidentiary acts of
the person, as opposed to the negative attitude of silence or
D
submission on his part. Nor is there any reason to think that the
protection in respect of the evidence so procured is confined to
what transpires at the trial in the court room. The phrase used in
Article 20(3) is “to be a witness” and not to “appear as a witness”:
It follows that the protection afforded to an accused in so far as it
E is related, to the phrase “to be a witness” is not merely in respect
of testimonial compulsion in the court room but may well extend
to compelled testimony previously obtained from him. It is available
therefore to a person against whom a formal accusation relating
to the commission of an offence has been levelled which in the
normal course may result in prosecution. Whether it is available
F
to other persons in other situations does not call for decision in
this case.
Considered in this light, the guarantee under Article 20(3) would
be available in the present cases to these petitioners against whom
a first information report has been recorded as accused therein.
G It would extend to any compulsory process for production of
evidentiary documents which are reasonably likely to support a
prosecution against them.
(at pages 1087-1088)

H
TOFAN SINGH v. STATE OF TAMIL NADU 641
[R. F. NARIMAN, J.]

16. The Court then went on to state that there was no “fundamental A
right to privacy” under the Indian Constitution, like the Fourth Amendment
to the US Constitution, about which more shall be said a little later. What
is important, however, is the fact that even in this early judgment, a mere
literal reading was not given to Article 20(3). The Court recognised that
a person can be said to be a witness not merely by giving oral evidence,
B
but also by producing documents – evidence being furnished through the
lips of a person or by production of a thing or of a document or in other
modes. It is important to stress that the protection was afforded to a
person formally accused of an offence on the basis of a statement that
may be compulsorily taken from him even before evidence is given in a
court. C
17. An eleven-Judge Bench was then constituted in State of
Bombay v. Kathi Kalu Oghad and Ors. (1963) 2 SCR 10, as certain
doubts were raised on some of the propositions contained in the eight-
Judge Bench decision of M.P. Sharma (supra). In this case, there were
three appeals before the Court, one of which involved proof of handwritten D
evidence, another of which involved comparison of handwriting under
section 73 of the Evidence Act, and the third of which involved section
27 of the Evidence Act. After hearing arguments on both sides, the
Court first concluded that M.P. Sharma (supra) was correctly decided
insofar as it stated that the guarantee under Article 20(3) extended to
testimony by a witness given in or out of courts, which included statements E
which incriminated the maker. However, the Court went on to state that
“furnishing evidence” would exclude thumb-impressions or writing
specimens, for the reason that the taking of impressions of parts of the
body often becomes necessary for the investigation of a crime (see
page 29). Incriminating information must therefore include statements F
based on personal knowledge. The Court then went on to consider whether
section 27 of the Evidence Act would fall foul of Article 20(3), having
already been upheld when a constitutional challenge under Article 14
had been repelled by the Court in State of U.P. v. Deoman Upadhyaya
(1961) 1 SCR 14. The Court held that if self-incriminatory information is
given under compulsion, then the provisions of section 27 of the Evidence G
Act would not apply so as to allow the prosecution to place reliance on
the object recovered as a result of the statement made (see pages 33-
34). In the result, the Court held:

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642 SUPREME COURT REPORTS [2020] 12 S.C.R.

A “(1) An accused person cannot be said to have been compelled to
be a witness against himself simply because he made a statement
while in police custody, without anything more. In other words,
the mere fact of being in police custody at the time when the
statement in question was made would not, by itself, as a
proposition of law, lend itself to the inference that the accused
B
was compelled to make the statement, though that fact, in
conjunction with other circumstances disclosed in evidence in a
particular case, would be a relevant consideration in an enquiry
whether or not the accused person had been compelled to make
the impugned statement.
C (2) The mere questioning of an accused person by a police officer,
resulting in a voluntary statement, which may ultimately turn out
to be incriminatory, is not “compulsion”.
(3) “To be a witness” is not equivalent to “furnishing evidence” in
its widest significance; that is to say, as including not merely making
D of oral or written statements but also production of documents or
giving materials which may be relevant at a trial to determine the
guilt or innocence of the accused.
(4) Giving thumb impressions or impressions of foot or palm or
fingers or specimen writings or showing parts of the body by way
E of identification are not included in the expression “to be a
witness”.
(5) “To be a witness” means imparting knowledge in respect of
relevant facts by an oral statement or a statement in writing, made
or given in court or otherwise.
F
(6) “To be a witness” in its ordinary grammatical sense means
giving oral testimony in court. Case law has gone beyond this
strict literal interpretation of the expression which may now bear
a wider meaning, namely, bearing testimony in court or out of
court by a person accused of an offence, orally or in writing.
G
(7) To bring the statement in question within the prohibition of
Article 20(3), the person accused must have stood in the character
of an accused person at the time he made the statement. It is not
enough that he should become an accused, any time after the
statement has been made.”
H (at pages 36-37)
TOFAN SINGH v. STATE OF TAMIL NADU 643
[R. F. NARIMAN, J.]

18. It is important to note that conclusions (1) and (2) were made A
in the context of repelling a challenge to section 27 of the Evidence Act.
M.P. Sharma (supra), so far as it held that a person is accused the
moment there is a formal accusation against him, by way of an FIR or
otherwise, and that statements made by such person outside court, whether
oral or on personal knowledge of documents produced, is protected by
B
Article 20(3), remained untouched.
19. It is also important to note that in Balkishan A. Devidayal
(supra), these judgments were referred to, and the Court then concluded:
“70. To sum up, only a person against whom a formal accusation
of the commission of an offence has been made can be a person C
“accused of an offence” within the meaning of Article 20(3). Such
formal accusation may be specifically made against him in an
FIR or a formal complaint or any other formal document or notice
served on that person, which ordinarily results in his prosecution
in court. In the instant case no such formal accusation had been
made against the appellant when his statement(s) in question were D
recorded by the RPF officer.”
20. We now come to the judgment of this Court in Nandini
Satpathy v. P.L. Dani (1978) 2 SCC 424. This case referred to the
inter-play between Article 20(3) and section 161 of the CrPC as follows:
E
“21. Back to the constitutional quintessence invigorating the ban
on self-incrimination. The area covered by Article 20(3) and
Section 161(2) is substantially the same. So much so, we are
inclined to the view, terminological expansion apart, that Section
161(2) of the CrPC is a parliamentary gloss on the constitutional
clause. The learned Advocate-General argued that Article 20(3), F
unlike Section 161(1), did not operate at the anterior stages before
the case came to court and the accused’s incriminating utterance,
previously recorded, was attempted to be introduced. He relied
on some passages in American decisions but, in our understanding,
those passages do not so circumscribe and, on the other hand, the G
landmark Miranda [Miranda v. Arizona, 384 US 436 (1966)]
ruling did extend the embargo to police investigation also.
Moreover, Article 20(3), which is our provision, warrants no such
truncation. Such a narrow meaning may emasculate a necessary
protection. There are only two primary queries involved in this
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644 SUPREME COURT REPORTS [2020] 12 S.C.R.

A clause that seals the lips into permissible silence: (i) Is the person
called upon to testify “accused of any offence”? (ii) Is he being
compelled to be witness against himself? A constitutional provision
receives its full semantic range and so it follows that a wider
connotation must be imparted to the expressions “accused of any
offence” and “to be witness against himself”. The learned
B
Advocate-General, influenced by American decisions rightly
agreed that in expression Section 161(2) of the Code might cover
not merely accusations already registered in police stations but
those which are likely to be the basis for exposing a person to a
criminal charge. Indeed, this wider construction, if applicable to
C Article 20(3), approximates the constitutional clause to the explicit
statement of the prohibition in Section 161(2). This latter provision
meaningfully uses the expression “expose himself to a criminal
charge”. Obviously, these words mean, not only cases where the
person is already exposed to a criminal charge but also instances
which will imminently expose him to criminal charges. In Article
D
20(3), the expression “accused of any offence” must mean
formally accused in praesenti not in futuro — not even
imminently as decisions now stand. The expression “to be witness
against himself” means more than the court process. Any giving
of evidence, any furnishing of information, if likely to have an
E incriminating impact, answers the description of being witness
against oneself. Not being limited to the forensic stage by express
words in Article 20(3), we have to construe the expression to
apply to every stage where furnishing of information and collection
of materials takes place. That is to say, even the investigation at
the police level is embraced by Article 20(3). This is precisely
F
what Section 161(2) means. That sub-section relates to oral
examination by police officers and grants immunity at that stage.
Briefly, the Constitution and the Code are co-terminus in the
protective area. While the Code may be changed, the Constitution
is more enduring. Therefore, we have to base our conclusion not
G merely upon Section 161(2) but on the more fundamental
protection, although equal in ambit, contained in Article 20(3).
xxx xxxxxx
57. We hold that Section 161 enables the police to examine the
accused during investigation. The prohibitive sweep of Article 20(3)
H
TOFAN SINGH v. STATE OF TAMIL NADU 645
[R. F. NARIMAN, J.]

goes back to the stage of police interrogation — not, as contended, A
commencing in court only. In our judgment, the provisions of Article
20(3) and Section 161(1) substantially cover the same area, so
far as police investigations are concerned. The ban on self-
accusation and the right to silence, while one investigation or trial
is under way, goes beyond that case and protects the accused in
B
regard to other offences pending or imminent, which may deter
him from voluntary disclosure of criminatory matter. We are
disposed to read “compelled testimony” as evidence procured not
merely by physical threats or violence but by psychic torture,
atmospheric pressure, environmental coercion, tiring interrogative
prolixity, overbearing and intimidatory methods and the like — not C
legal penalty for violation. So, the legal perils following upon refusal
to answer, or answer truthfully, cannot be regarded as compulsion
within the meaning of Article 20(3). The prospect of prosecution
may lead to legal tension in the exercise of a constitutional right,
but then, a stance of silence is running a calculated risk. On the
D
other hand, if there is any mode of pressure, subtle or crude, mental
or physical, direct or indirect, but sufficiently substantial, applied
by the policeman for obtaining information from an accused
strongly suggestive of guilt, it becomes “compelled testimony”,
violative of Article 20(3).
58. A police officer is clearly a person in authority. Insistence on E
answering is a form of pressure especially in the atmosphere of
the police station unless certain safeguards erasing duress are
adhered to. Frequent threats of prosecution if there is failure to
answer may take on the complexion of undue pressure violating
Article 20(3). Legal penalty may by itself not amount to duress F
but the manner of mentioning it to the victim of interrogation may
introduce an element of tension and tone of command perilously
hovering near compulsion.
59. We have explained elaborately and summed up, in substance,
what is self-incrimination or tendency to expose oneself to a G
criminal charge. It is less than “relevant” and more than
“confessional”. Irrelevance is impermissible but relevance is licit
but when relevant questions are loaded with guilty inference in
the event of an answer being supplied, the tendency to incriminate
springs into existence. We hold further that the accused person
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646 SUPREME COURT REPORTS [2020] 12 S.C.R.

A cannot be forced to answer questions merely because the answers
thereto are not implicative when viewed in isolation and confined
to that particular case. He is entitled to keep his mouth shut if the
answer sought has a reasonable prospect of exposing him to guilt
in some other accusation actual or imminent, even though the
investigation under way is not with reference to that. We have
B
already explained that in determining the incriminatory character
of an answer the accused is entitled to consider — and the Court
while adjudging will take note of — the setting, the totality of
circumstances, the equation, personal and social, which have a
bearing on making an answer substantially innocent but in effect
C guilty in import. However, fanciful claims, unreasonable
apprehensions and vague possibilities cannot be the hiding ground
for an accused person. He is bound to answer where there is no
clear tendency to criminate.”
21. In Kartar Singh (supra), the majority judgment referred to
D Article 20(3) in the following terms:
“205. In our Constitution as well as procedural law and law of
Evidence, there are certain guarantees protecting the right and
liberty of a person in a criminal proceeding and safeguards in
making use of any statement made by him. Article 20(3) of the
E Constitution declares that “No person accused of any offence
shall be compelled to be a witness against himself”.
206. Article 20(3) of our Constitution embodies the principle of
protection against compulsion of self-incrimination which is one
of the fundamental canons of the British System of Criminal
F Jurisprudence and which has been adopted by the American
System and incorporated in the Federal Acts. The Fifth Amendment
of the Constitution of the United States of America provides, “No
person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury,
except in cases arising … nor shall be compelled in any criminal
G case to be a witness against himself…”.
207. The above principle is recognised to a substantial extent in
the criminal administration of justice in our country by incorporating
various statutory provisions. One of the components of the
guarantee contained in Article 20(3) of the Constitution is that it is
H
TOFAN SINGH v. STATE OF TAMIL NADU 647
[R. F. NARIMAN, J.]

a protection against compulsion resulting in the accused of any A
offence giving evidence against himself. There are a number of
outstanding decisions of this Court in explaining the intendment of
Article 20(3). We feel that it would suffice if mere reference is
made to some of the judgments, those being: (1) M.P.
Sharma v. Satish Chandra, District Magistrate, Delhi [1954
B
SCR 1077], (2) Raja Narayanlal Bansilal v. Maneck Phiroz
Mistry [(1961) 1 SCR 417], (3) State of Bombay v. Kathi Kalu
Oghad [(1962) 3 SCR 10], and (4) Nandini Satpathy v. P.L.
Dani [(1978) 2 SCC 424].
208. Article 22(1) and (2) confer certain rights upon a person
who has been arrested. Coming to the provisions of Code of C
Criminal Procedure, Section 161 empowers a police officer making
an investigation to examine orally any person supposed to be
acquainted with the facts and circumstances of the case and to
reduce into writing any statement made to him in the course of
such examination. Section 162 which speaks of the use of the D
statement so recorded, states that no statement recorded by a
police officer, if reduced into writing, be signed by the person
making it and that the statement shall not be used for any purpose
save as provided in the Code and the provisions of the Evidence
Act. The ban imposed by Section 162 applies to all the statements
whether confessional or otherwise, made to a police officer by E
any person whether accused or not during the course of the
investigation under Chapter XII of the Code. But the statement
given by an accused can be used in the manner provided by Section
145 of the Evidence Act in case the accused examines himself as
a witness for the defence by availing Section 315(1) of the Code F
corresponding to Section 342-A of the old Code and to give
evidence on oath in disproof of the charges made against him or
any person charged together with him at the same trial.
209. There is a clear embargo in making use of this statement of
an accused given to a police officer under Section 25 of the G
Evidence Act, according to which, no confession made to a police
officer shall be proved as against a person accused of any offence
and under Section 26 according to which no confession made by
any person whilst he is in custody of a police officer, unless it is
made in the immediate presence of a Magistrate, shall be proved
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648 SUPREME COURT REPORTS [2020] 12 S.C.R.

A as against such person. The only exception is given under Section
27 which serves as a proviso to Section 26. Section 27 contemplates
that only so much of information whether amounts to confession
or not, as relates distinctly to the fact thereby discovered, in
consequence of that information received from a person accused
of any offence while in custody of the police can be proved as
B
against the accused.
210. In the context of the matter under discussion, two more
provisions also may be referred to — namely Sections 24 and 30
of the Evidence Act and Section 164 of the Code.
C 211. Section 24 of the Evidence Act makes a confession, caused
to be made before any authority by an accused by any inducement,
threat or promise, irrelevant in a criminal proceeding. Section 30
of the Evidence Act is to the effect that if a confession made by
one or more persons, affecting himself and some others jointly
tried for the same offence is proved, the court may take into
D consideration such confession as against such other persons as
well as the maker of the confession. The explanation to the section
reads that “offence” as used in this section includes the abetment
of, or attempt to commit, the offence.
212. Section 164 of the Code speaks of recording of confessions
E and statements by Magistrates specified in that section by
complying with the legal formalities and observing the statutory
conditions including the appendage of a Certificate by the
Magistrate recording the confession as contemplated under sub-
sections (2) to (6) thereof.
F 213. Though in the old Code, there was a specific embargo on a
police officer recording any statement or confession made to him
in the course of an investigation embodied in the main sub-section
(1) of Section 164 itself, in the present Code the legal bar is now
brought by a separate proviso to sub-section (1) of Section 164
G which reads:
“Provided that no confession shall be recorded by a police officer
on whom any power of a Magistrate has been conferred under
any law for the time being in force.”

H
TOFAN SINGH v. STATE OF TAMIL NADU 649
[R. F. NARIMAN, J.]

This is a new provision but conveys the same meaning as embodied A
in the main sub-section (1) of Section 164 of the old Code.
214. Thus, an accused or a person accused of any offence is
protected by the constitutional provisions as well as the statutory
provisions to the extent that no self-incriminating statement made
by an accused to the police officer while he is in custody, could be B
used against such maker. The submission of the Additional Solicitor
General that while a confession by an accused before a specified
officer either under the Railway Protection Force Act or Railway
Property (Unlawful Possession) Act or Customs Act or Foreign
Exchange Regulation Act is made admissible, the special procedure
prescribed under this Act making a confession of a person indicted C
under the TADA Act given to a police officer admissible cannot
be questioned, is misnomer because all the officials empowered
to record statements under those special Acts are not police
officers as per the judicial pronouncements of this Court as well
the High Courts which principle holds the field till date. See D
(1) State of U.P. v. Durga Prasad [(1975) 3 SCC 210] ,
(2) Balkishan A. Devidayal v. State of Maharashtra [(1980) 4
SCC 600] , (3) Ramesh Chandra Mehta v. State of W.B. [Ramesh
Chandra Mehta v. State of W.B., (1969) 2 SCR 46],
(4) Poolpandi v. Superintendent, Central Excise [(1992) 3 SCC
259], (5) Directorate of Enforcement v. Deepak Mahajan E
[(1994) 3 SCC 440], and (6) Ekambaram v. State of T.N. [1972
MLW (Cri) 261] We feel that it is not necessary to cite any more
decisions and swell this judgment.”
22. Ramaswamy, J. concurring in part, but dissenting on the
constitutional validity of sections 9(7) and 15 of the TADA, also referred F
to Article 20(3) as follows:
“377. Custodial interrogation exposes the suspect to the risk of
abuse of his person or dignity as well as distortion or manipulation
of his self-incrimination in the crime. No one should be subjected
to physical violence of the person as well as to torture. G
Infringement thereof undermines the peoples’ faith in the efficacy
of criminal justice system. Interrogation in police lock-up are often
done under conditions of pressure and tension and the suspect
could be exposed to great strain even if he is innocent, while the
culprit in custody to hide or suppress may be doubly susceptible to H
650 SUPREME COURT REPORTS [2020] 12 S.C.R.

A confusion and manipulation. A delicate balance has, therefore, to
be maintained to protect the innocent from conviction and the
need of the society to see the offender punished. Equally everyone
has right against self-incrimination and a right to be silent under
Article 20(3) which implies his freedom from police or anybody
else. But when the police interrogates a suspect, they abuse their
B
authority having unbridled opportunity to exploit his moral position
and authority inducing the captive to confess against his better
judgment. The very fact that the person in authority puts the
questions and exerts pressure on the captive to comply (sic).
Silence on the part of the frightened captive seems to his ears to
C call for vengeance and induces a belief that confession holds out
a chance to avoid torture or to get bail or a promise of lesser
punishment. The resourceful investigator adopts all successful
tactics to elicit confession as is discussed below.
xxx xxxxxx
D 396. In the State of Bombay v. Kathi Kalu Oghad [(1962) 3 SCR
10] a Bench of 11 Judges, per majority, interpreting Article 20(3)
held on “testimonial compulsion” that, “[w]e can see no reason to
confine the content of the constitutional guarantee to this barely
literal import. So to limit it would be to rob the guarantee of its
E substantial purpose and to miss the substance for the sound as
stated in certain American decisions.” Indeed every positive act
which furnishes evidence is testimony and testimonial compulsion
connotes coercion which procures positive oral evidence. The
acts of the person, of course, is neither negative attitude of silence
or submission on his part, nor is there any reason to think that the
F protection in respect of the evidence procured is confined to what
transpires at the trial in the court room. The phrase used in Article
20(3) is to be a witness and not to appear as a witness. It follows
that the protection accorded to an accused insofar as it is related
to the phrase “to be a witness” is not merely in respect of the
G testimonial compulsion in the court room but may well extend to
compelled testimony previously obtained from him. The guarantee
was, therefore, held to include not only oral testimony given in a
court or out of court, but also statements in writing which
incriminated the maker when figuring as accused person.
In Nandini Satpathy v. P.L. Dani it was further held that
H
TOFAN SINGH v. STATE OF TAMIL NADU 651
[R. F. NARIMAN, J.]

compelled testimony must be read as evidence procured not merely A
by physical threat or violence but by psychic torture, atmospheric
pressure, environmental coercion, tiring interrogative prolixity,
overbearing and intimidatory methods and the like — not legal
penalty for violation.”
23. Sahai, J. in a separate opinion, concurring in part, but dissenting B
on the constitutional validity of section 15, referred to Article 20(3) as
follows:
“456. A confession is an admission of guilt. The person making it
states something against himself, therefore it should be made in
surroundings which are free from suspicion. Otherwise it violates C
the constitutional guarantee under Article 20(3) that no person
accused of an offence shall be compelled to be a witness against
himself. The word ‘offence’ used in the article should be given its
ordinary meaning. It applies as much to an offence committed
under TADA as under any other Act. The word, ‘compelled’
ordinarily means ‘by force’. This may take place positively and D
negatively. When one forces one to act in a manner desired by
him it is compelling him to do that thing. Same may take place
when one is prevented from doing a particular thing unless he
agrees to do as desired. In either case it is compulsion. A
confession made by an accused or obtained by him under coercion E
suffers from infirmity unless it is made freely and voluntarily. No
civilised democratic country has accepted confession made by an
accused before a police officer as voluntary and above suspicion,
therefore, admissible in evidence. One of the established rule or
norms accepted everywhere is that custodial confession is
presumed to be tainted. The mere fact that the Legislature was F
competent to make the law, as the offence under TADA is one
which did not fall in any State entry, did not mean that the
Legislature was empowered to curtail or erode a person of his
fundamental rights. Making a provision which has the effect of
forcing a person to admit his guilt amounts to denial of the liberty. G
The class of offences dealt by TADA may be different than other
offences but the offender under TADA is as much entitled to
protection of Articles 20 and 21 as any other. The difference in
nature of offence or the legislative competence to enact a law did
not affect the fundamental rights guaranteed by Chapter III. If
H
652 SUPREME COURT REPORTS [2020] 12 S.C.R.

A the construction as suggested by the learned Additional Solicitor
General is accepted it shall result in taking the law back once
again to the days of Gopalan [A.K. Gopalan v. State of Madras,
AIR 1950 SC 27] . Section 15 cannot be held to be valid merely
because it is as a result of law made by a body which has been
found entitled to make the law. The law must still be fair and just
B
as held by this Court. A law which entitles a police officer to
record confession and makes it admissible is thus violative of both
Articles 20(3) and 21 of the Constitution.”
24. A recent judgment in Selvi v. State of Karnataka (2010) 7
SCC 263 dealt with the constitutional validity of narco-analysis tests as
C follows:
“179. We now return to the operative question of whether the
results obtained through polygraph examination and the BEAP
test should be treated as testimonial responses. Ordinarily evidence
is classified into three broad categories, namely, oral testimony,
D documents and material evidence. The protective scope of Article
20(3) read with Section 161(2) CrPC guards against the
compulsory extraction of oral testimony, even at the stage of
investigation. With respect to the production of documents, the
applicability of Article 20(3) is decided by the trial Judge but parties
E are obliged to produce documents in the first place. However, the
compulsory extraction of material (or physical) evidence lies
outside the protective scope of Article 20(3). Furthermore, even
testimony in oral or written form can be required under compulsion
if it is to be used for the purpose of identification or comparison
with materials and information that is already in the possession of
F investigators.
180. We have already stated that the narcoanalysis test includes
substantial reliance on verbal statements by the test subject and
hence its involuntary administration offends the “right against self-
incrimination”. The crucial test laid down in Kathi Kalu Oghad
G is that of
“imparting knowledge in respect of relevant facts, by means of
oral statements or statements in writing by a person who has
personal knowledge of the facts to be communicated to a court or
to a person holding an enquiry or investigation” (ibid. at SCR p.
H 30.).
TOFAN SINGH v. STATE OF TAMIL NADU 653
[R. F. NARIMAN, J.]

The difficulty arises since the majority opinion in that case appears A
to confine the understanding of “personal testimony” to the
conveyance of personal knowledge through oral statements or
statements in writing. The results obtained from polygraph
examination or a BEAP test are not in the nature of oral or written
statements. Instead, inferences are drawn from the measurement
B
of physiological responses recorded during the performance of
these tests. It could also be argued that tests such as polygraph
examination and the BEAP test do not involve a “positive volitional
act” on part of the test subject and hence their results should not
be treated as testimony. However, this does not entail that the
results of these two tests should be likened to physical evidence C
and thereby excluded from the protective scope of Article 20(3).
181. We must refer back to the substance of the decision in Kathi
Kalu Oghad which equated a testimonial act with the imparting
of knowledge by a person who has personal knowledge of the
facts that are in issue. It has been recognised in other decisions D
that such personal knowledge about relevant facts can also be
communicated through means other than oral or written
statements. For example in M.P. Sharma case, it was noted that
“…evidence can be furnished through the lips or by production of
a thing or of a document or in other modes.” (ibid. at SCR p.
1087) Furthermore, common sense dictates that certain E
communicative gestures such as pointing or nodding can also
convey personal knowledge about a relevant fact, without offering
a verbal response. It is quite foreseeable that such a communicative
gesture may by itself expose a person to “criminal charges or
penalties” or furnish a link in the chain of evidence needed for F
prosecution.
182. We must also highlight that there is nothing to show that the
learned Judges in Kathi Kalu Oghad had contemplated the
impugned techniques while discussing the scope of the phrase “to
be a witness” for the purpose of Article 20(3). At that time, the G
transmission of knowledge through means other than speech or
writing was not something that could have been easily conceived
of. Techniques such as polygraph examination were fairly obscure
and were the subject of experimentation in some western nations
while the BEAP technique was developed several years later.
H
654 SUPREME COURT REPORTS [2020] 12 S.C.R.

A Just as the interpretation of statutes has to be often re-examined
in light of scientific advancements, we should also be willing to
re-examine judicial observations with a progressive lens.
183. An explicit reference to the lie detector tests was of course
made by the US Supreme Court in Schmerber [384 US 757
B (1965)] decision, wherein Brennan, J. had observed at US p. 764:
(L Ed p. 916)
“…To compel a person to submit to testing in which an effort will
be made to determine his guilt or innocence on the basis of
physiological responses, whether willed or not, is to evoke the
C spirit and history of the Fifth Amendment.”
184. Even though the actual process of undergoing a polygraph
examination or a BEAP test is not the same as that of making an
oral or written statement, the consequences are similar. By making
inferences from the results of these tests, the examiner is able to
D derive knowledge from the subject’s mind which otherwise would
not have become available to the investigators. These two tests
are different from medical examination and the analysis of bodily
substances such as blood, semen and hair samples, since the test
subject’s physiological responses are directly correlated to mental
faculties. Through lie detection or gauging a subject’s familiarity
E with the stimuli, personal knowledge is conveyed in respect of a
relevant fact. It is also significant that unlike the case of documents,
the investigators cannot possibly have any prior knowledge of the
test subject’s thoughts and memories, either in the actual or
constructive sense. Therefore, even if a highly strained analogy
F were to be made between the results obtained from the impugned
tests and the production of documents, the weight of precedents
leans towards restrictions on the extraction of “personal
knowledge” through such means.
185. During the administration of a polygraph test or a BEAP
G test, the subject makes a mental effort which is accompanied by
certain physiological responses. The measurement of these
responses then becomes the basis of the transmission of
knowledge to the investigators. This knowledge may aid an ongoing
investigation or lead to the discovery of fresh evidence which
could then be used to prosecute the test subject. In any case, the
H compulsory administration of the impugned tests impedes the
TOFAN SINGH v. STATE OF TAMIL NADU 655
[R. F. NARIMAN, J.]

subject’s right to choose between remaining silent and offering A
substantive information. The requirement of a “positive volitional
act” becomes irrelevant since the subject is compelled to convey
personal knowledge irrespective of his/her own volition.
xxx xxxxxx
189. In light of the preceding discussion, we are of the view that B
the results obtained from tests such as polygraph examination
and the BEAP test should also be treated as “personal testimony”,
since they are a means for “imparting personal knowledge about
relevant facts”. Hence, our conclusion is that the results obtained
through the involuntary administration of either of the impugned C
tests (i.e. the narcoanalysis technique, polygraph examination and
the BEAP test) come within the scope of “testimonial compulsion”,
thereby attracting the protective shield of Article 20(3).
xxx xxxxxx
262. In our considered opinion, the compulsory administration of D
the impugned techniques violates the “right against self-
incrimination”. This is because the underlying rationale of the said
right is to ensure the reliability as well as voluntariness of
statements that are admitted as evidence. This Court has
recognised that the protective scope of Article 20(3) extends to E
the investigative stage in criminal cases and when read with Section
161(2) of the Code of Criminal Procedure, 1973 it protects accused
persons, suspects as well as witnesses who are examined during
an investigation. The test results cannot be admitted in evidence
if they have been obtained through the use of compulsion. Article
20(3) protects an individual’s choice between speaking and F
remaining silent, irrespective of whether the subsequent testimony
proves to be inculpatory or exculpatory. Article 20(3) aims to
prevent the forcible “conveyance of personal knowledge that is
relevant to the facts in issue”. The results obtained from each of
the impugned tests bear a “testimonial” character and they cannot G
be categorised as material evidence.
263. We are also of the view that forcing an individual to undergo
any of the impugned techniques violates the standard of
“substantive due process” which is required for restraining personal
liberty. Such a violation will occur irrespective of whether these
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656 SUPREME COURT REPORTS [2020] 12 S.C.R.

A techniques are forcibly administered during the course of an
investigation or for any other purpose since the test results could
also expose a person to adverse consequences of a non-penal
nature. The impugned techniques cannot be read into the statutory
provisions which enable medical examination during investigation
in criminal cases i.e. the Explanation to Sections 53, 53-A and 54
B
of the Code of Criminal Procedure, 1973. Such an expansive
interpretation is not feasible in light of the rule of “ejusdem generis”
and the considerations which govern the interpretation of statutes
in relation to scientific advancements. We have also elaborated
how the compulsory administration of any of these techniques is
C an unjustified intrusion into the mental privacy of an individual. It
would also amount to “cruel, inhuman or degrading treatment”
with regard to the language of evolving international human rights
norms. Furthermore, placing reliance on the results gathered from
these techniques comes into conflict with the “right to fair trial”.
Invocations of a compelling public interest cannot justify the dilution
D
of constitutional rights such as the “right against self-incrimination”.
264. In light of these conclusions, we hold that no individual should
be forcibly subjected to any of the techniques in question, whether
in the context of investigation in criminal cases or otherwise. Doing
so would amount to an unwarranted intrusion into personal liberty.
E However, we do leave room for the voluntary administration of
the impugned techniques in the context of criminal justice provided
that certain safeguards are in place. Even when the subject has
given consent to undergo any of these tests, the test results by
themselves cannot be admitted as evidence because the subject
F does not exercise conscious control over the responses during the
administration of the test. However, any information or material
that is subsequently discovered with the help of voluntary
administered test results can be admitted in accordance with
Section 27 of the Evidence Act, 1872.”
G 25. Equally important is the right to privacy which has been
recognised by a number of decisions of this Court, and now firmly
grounded in Article 21 of the Constitution of India. In K.S. Puttaswamy
(supra), several judgments were referred to; and M.P. Sharma (supra),
where it was held that no such right was recognised in the Constitution
of India, was overruled. Thus, in the judgment of Chandrachud, J., it
H was stated:
TOFAN SINGH v. STATE OF TAMIL NADU 657
[R. F. NARIMAN, J.]

“26.M.P. Sharma [1954 SCR 1077] was a case where a law A
prescribing a search to obtain documents for investigating into
offences was challenged as being contrary to the guarantee against
self-incrimination in Article 20(3). The Court repelled the argument
that a search for documents compelled a person accused of an
offence to be witness against himself. Unlike a notice to produce
B
documents, which is addressed to a person and whose compliance
would constitute a testimonial act, a search warrant and a seizure
which follows are not testimonial acts of a person to whom the
warrant is addressed, within the meaning of Article 20(3). The
Court having held this, the controversy in M.P. Sharma would
rest at that. The observations in M.P. Sharma to the effect that C
the Constitution makers had not thought it fit to subject the
regulatory power of search and seizure to constitutional limitations
by recognising a fundamental right to privacy (like the US Fourth
Amendment), and that there was no justification to import it into a
“totally different fundamental right” are at the highest, stray
D
observations.
27. The decision in M.P. Sharma held that in the absence of a
provision like the Fourth Amendment to the US Constitution, a
right to privacy cannot be read into the Indian Constitution. The
decision in M.P. Sharma did not decide whether a constitutional
right to privacy is protected by other provisions contained in the E
fundamental rights including among them, the right to life and
personal liberty under Article 21. Hence the decision cannot be
construed to specifically exclude the protection of privacy under
the framework of protected guarantees including those in Articles
19 or 21. The absence of an express constitutional guarantee of F
privacy still begs the question whether privacy is an element of
liberty and, as an integral part of human dignity, is comprehended
within the protection of life as well.
xxx xxxxxx
100. M.P. Sharma dealt with a challenge to a search on the ground G
that the statutory provision which authorised it, violated the
guarantee against self-incrimination in Article 20(3). In the absence
of a specific provision like the Fourth Amendment to the US
Constitution in the Indian Constitution, the Court answered the
challenge by its ruling that an individual who is subject to a search H
658 SUPREME COURT REPORTS [2020] 12 S.C.R.

A during the course of which material is seized does not make a
voluntary testimonial statement of the nature that would attract
Article 20(3). The Court distinguished a compulsory search from
a voluntary statement of disclosure in pursuance of a notice issued
by an authority to produce documents. It was the former category
that was held to be involved in a compulsive search, which the
B
Court held would not attract the guarantee against self-
incrimination. The judgment, however, proceeded further to hold
that in the absence of the right to privacy having been enumerated
in the Constitution, a provision like the Fourth Amendment to the
US Constitution could not be read into our own. The observation
C in regard to the absence of the right to privacy in our Constitution
was strictly speaking, not necessary for the decision of the Court
in M.P. Sharma and the observation itself is no more than a passing
observation. Moreover, the decision does not adjudicate upon
whether privacy could be a constitutionally protected right under
any other provision such as Article 21 or under Article 19.
D
xxx xxxxxx
316. The judgment in M.P. Sharma holds essentially that in the
absence of a provision similar to the Fourth Amendment to the
US Constitution, the right to privacy cannot be read into the
E provisions of Article 20(3) of the Indian Constitution. The judgment
does not specifically adjudicate on whether a right to privacy would
arise from any of the other provisions of the rights guaranteed by
Part III including Article 21 and Article 19. The observation that
privacy is not a right guaranteed by the Indian Constitution is not
reflective of the correct position. M.P. Sharma is overruled to
F the extent to which it indicates to the contrary.”
26. The judgment of Nariman, J. held as follows:
“442. The importance of Semayne case [77 ER 194] is that it
decided that every man’s home is his castle and fortress for his
G defence against injury and violence, as well as for his repose.
William Pitt, the Elder, put it thus:
“The poorest man may in his cottage bid defiance to all the
force of the Crown. It may be frail—its roof may shake—the
wind may blow through it—the storm may enter, the rain may
enter—but the King of England cannot enter—all his force
H
dare not cross the threshold of the ruined tenement.”
TOFAN SINGH v. STATE OF TAMIL NADU 659
[R. F. NARIMAN, J.]

A century and a half later, pretty much the same thing was said A
in Huckle v. Money [Huckle v. Money 95 ER 768] in which it
was held that Magistrates cannot exercise arbitrary powers which
violated the Magna Carta (signed by King John, conceding certain
rights to his barons in 1215), and if they did, exemplary damages
must be given for the same. It was stated that: (ER p. 769)
B
“… To enter a man’s house by virtue of a nameless warrant,
in order to procure evidence, is worse than the Spanish
Inquisition; a law under which no Englishman would wish to
live an hour….”
443. This statement of the law was echoed C
in Entick v. Carrington [Entick v. Carrington 95 ER 807] in
which Lord Camden held that an illegal search warrant was
“subversive of all the comforts of society” and the issuance of
such a warrant for the seizure of all of a man’s papers, and not
only those alleged to be criminal in nature, was “contrary to the
genius of the law of England”. A few years later, in Da D
Costa v. Jones [Da Costa v. Jones 98 ER 1331] , Lord Mansfield
upheld the privacy of a third person when such privacy was the
subject-matter of a wager, which was injurious to the reputation
of such third person. The wager in that case was as to whether a
certain Chevalier D’eon was a cheat and imposter in that he was E
actually a woman. Such wager which violated the privacy of a
third person was held to be injurious to the reputation of the third
person for which damages were awarded to the third person.
These early judgments did much to uphold the inviolability of the
person of a citizen.
F
xxx xxxxxx
456. The first thing that strikes one on reading the aforesaid
passage is that the Court (in M.P. Sharma) resisted the invitation
to read the US Fourth Amendment into the US Fifth Amendment;
in short it refused to read or import the Fourth Amendment into G
the Indian equivalent of that part of the Fifth Amendment which
is the same as Article 20(3) of the Constitution of India. Also, the
fundamental right to privacy, stated to be analogous to the Fourth
Amendment, was held to be something which could not be read
into Article 20(3).
H
660 SUPREME COURT REPORTS [2020] 12 S.C.R.

A 457. The second interesting thing to be noted about these
observations is that there is no broad ratio in the said judgment
that a fundamental right to privacy is not available in Part III of
the Constitution. The observation is confined to Article 20(3).
Further, it is clear that the actual finding in the aforesaid case had
to do with the law which had developed in this Court as well as
B
the US and the UK on Article 20(3) which, on the facts of the
case, was held not to be violated. Also we must not forget that
this was an early judgment of the Court, delivered in
the Gopalan era, which did not have the benefit of R.C.
Cooper or Maneka Gandhi. Quite apart from this, it is clear
C that by the time this judgment was delivered, India was already a
signatory to the Universal Declaration of Human Rights, Article
12 of which states:
“12. No one shall be subjected to arbitrary interference with
his privacy, family, home or correspondence, nor to attacks
D upon his honour and reputation. Everyone has the right to
the protection of the law against such interference or attacks.”
xxx xxxxxx
468. It will be seen that different smaller Benches of this Court
were not unduly perturbed by the observations contained in M.P.
E Sharma as it was an early judgment of this Court delivered in
the Gopalan era which had been eroded by later judgments dealing
with the interrelation between fundamental rights and the
development of the fundamental right to privacy as being part of
the liberty and dignity of the individual.
F 469. Therefore, given the fact that this judgment dealt only with
Article 20(3) and not with other fundamental rights; given the
fact that the 1948 Universal Declaration of Human Rights
containing the right to privacy was not pointed out to the Court;
given the fact that it was delivered in an era when fundamental
G rights had to be read disjunctively in watertight compartments;
and given the fact that Article 21 as we know it today only sprung
into life in the post Maneka Gandhi era, we are of the view that
this judgment is completely out of harm’s way insofar as the
grounding of the right to privacy in the fundamental rights chapter
is concerned.
H
xxx xxxxxx
TOFAN SINGH v. STATE OF TAMIL NADU 661
[R. F. NARIMAN, J.]

472. The majority judgment in Kharak Singh [Kharak A
Singh v. State of U.P., (1964) 1 SCR 332] then went on to refer
to the Preamble to the Constitution, and stated that Article 21
contained the cherished human value of dignity of the individual
as the means of ensuring his full development and evolution. A
passage was then quoted from Wolf v. Colorado [Wolf v. Colorado
B
338 US 25 (1949)] to the effect that the security of one’s
privacy against arbitrary intrusion by the police is basic to a free
society. The Court then went on to quote the US Fourth
Amendment which guarantees the rights of the people to be
secured in their persons, houses, papers and effects against
unreasonable searches and seizures. Though the Indian C
Constitution did not expressly confer a like guarantee, the majority
held that nonetheless an unauthorised intrusion into a person’s
home would violate the English Common Law maxim which
asserts that every man’s house is his castle. In this view of Article
21, Regulation 236(b) was struck down.
D
xxx xxxxxx
475. If the passage in the judgment dealing with domiciliary visits
at night and striking it down is contrasted with the later passage
upholding the other clauses of Regulation 236 extracted above, it
becomes clear that it cannot be said with any degree of clarity E
that the majority judgment upholds the right to privacy as being
contained in the fundamental rights chapter or otherwise. As the
majority judgment contradicts itself on this vital aspect, it would
be correct to say that it cannot be given much value as a binding
precedent. In any case, we are of the view that the majority
judgment is good law when it speaks of Article 21 being designed F
to assure the dignity of the individual as a most cherished human
value which ensures the means of full development and evolution
of a human being. The majority judgment is also correct in pointing
out that Article 21 interdicts unauthorised intrusion into a person’s
home. Where the majority judgment goes wrong is in holding that G
fundamental rights are in watertight compartments and in holding
that the right to privacy is not a guaranteed right under our
Constitution. It can be seen, therefore, that the majority judgment
is like the proverbial curate’s egg—good only in parts. Strangely
enough when the good parts alone are seen, there is no real
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662 SUPREME COURT REPORTS [2020] 12 S.C.R.

A difference between Subba Rao, J.’s approach in the dissenting
judgment and the majority judgment. This then answers the major
part of the reference to this nine-Judge Bench in that we hereby
declare that neither the eight-Judge nor the six-Judge Bench can
be read to come in the way of reading the fundamental right to
privacy into Part III of the Constitution.
B
xxx xxxxxx
521. In the Indian context, a fundamental right to privacy would
cover at least the following three aspects:
• Privacy that involves the person i.e. when there is some invasion
C by the State of a person’s rights relatable to his physical body,
such as the right to move freely
• Informational privacy which does not deal with a person’s body
but deals with a person’s mind, and therefore recognises that an
individual may have control over the dissemination of material
D that is personal to him. Unauthorised use of such information may,
therefore lead to infringement of this right; and
• The privacy of choice, which protects an individual’s autonomy
over fundamental personal choices.
For instance, we can ground physical privacy or privacy relating
E
to the body in Articles 19(1)(d) and (e) read with Article 21; ground
personal information privacy under Article 21; and the privacy of
choice in Articles 19(1)(a) to (c), 20(3), 21 and 25. The argument
based on “privacy” being a vague and nebulous concept need not,
therefore, detain us.”
F
27. The NDPS Act is to be construed in the backdrop of Article
20(3) and Article 21, Parliament being aware of the fundamental rights
of the citizen and the judgments of this Court interpreting them, as a
result of which a delicate balance is maintained between the power of
the State to maintain law and order, and the fundamental rights chapter
G which protects the liberty of the individual. Several safeguards are thus
contained in the NDPS Act, which is of an extremely drastic and
draconian nature, as has been contended by the counsel for the Appellants
before us. Also, the fundamental rights contained in Articles 20(3) and
21 are given pride of place in the Constitution. After the 42nd Amendment
to the Constitution was done away with by the 44th Amendment, it is
H now provided that even in an Emergency, these rights cannot be
TOFAN SINGH v. STATE OF TAMIL NADU 663
[R. F. NARIMAN, J.]

suspended – see Article 359(1). The interpretation of a statute like the A
NDPS Act must needs be in conformity and in tune with the spirit of the
broad fundamental right not to incriminate oneself, and the right to privacy,
as has been found in the recent judgments of this Court.
CONFESSIONS UNDER SECTION 25 OF THE
EVIDENCE ACT B
28. At this juncture, it is important to set out sections 24 to 27 of
the Evidence Act:
“24. Confession caused by inducement, threat or promise,
when irrelevant in criminal proceeding.––A confession made
by an accused person is irrelevant in a criminal proceeding, if the C
making of the confession appears to the Court to have been caused
by any inducement, threat or promise having reference to the
charge against the accused person, proceeding from a person in
authority and sufficient, in the opinion of the Court, to give the
accused person grounds which would appear to him reasonable D
for supposing that by making it he would gain any advantage or
avoid any evil of a temporal nature in reference to the proceedings
against him.
25. Confession to police-officer not to be proved.––No
confession made to a police-officer, shall be proved as against a E
person accused of any offence.
26. Confession by accused while in custody of police not to
be proved against him.––No confession made by any person
whilst he is in the custody of a police-officer, unless it be made in
the immediate presence of a Magistrate, shall be proved as against F
such person.
Explanation.––In this section “Magistrate” does not include the
head of a village discharging magisterial functions in the Presidency
of Fort St. George or elsewhere, unless such headman is a
Magistrate exercising the powers of a Magistrate under the Code
G
of Criminal Procedure, 1882 (10 of 1882).
27. How much of information received from accused may
be proved.––Provided that, when any fact is deposed to as
discovered inconsequence of information received from a person
accused of any offence, in the custody of a police-officer, so much
H
664 SUPREME COURT REPORTS [2020] 12 S.C.R.

A of such information, whether it amounts to a confession or not, as
relates distinctly to the fact thereby discovered, may be proved.”
29. Section 25 was originally in the Criminal Procedure Code,
1861 (Act 25 of 1861), and was brought into the Evidence Act of 1872.
Section 25 states that a confession made to any police officer, whatever
B his rank, cannot be relied upon against a person accused of any offence.
“Police officer” is not defined in the Evidence Act or in any cognate
criminal statute. As to what, therefore, “police officer” means, has been
the subject matter of several decisions of this Court, which will be adverted
to later.For the time being, section 25 is to be viewed in contrast tosection
24, given the situation in India of the use of torture and third-degree
C measures. Unlike section 24, any confession made to a police officer
cannot be used as evidence against a person accused of an offence, the
voluntariness or otherwise of the confession being irrelevant – it is
conclusively presumed by the legislature that all such confessions made
to police officers are tainted with the vice of coercion.
D 30. The ‘First Report Of Her Majesty’s Commissioners Appointed
To Consider The Reform Of The Judicial Establishments, Judicial
Procedure And Laws Of India&c.’ (1856) which formed the basis for
section 25 of the Evidence Act, stated as follows:
“Then follow other provisions for preventing any species of
E compulsion ormaltreatment with a view to extort or confession or
procedure information. But weare informed, and this information
is corroborated by evidence we have examined,that, in spite of
this qualification, confessions are frequently extorted or fabricated.
Apolice officer, on receiving intimation of the occurrence of a
F dacoity or other offenceof a serious character, failing to discover
the perpetrators of the offence, oftenendeavours to secure himself
against any charge of supinates or neglect by getting upa case
against parties whose circumstances or characters are such as
are likely toobtain credit for an accusation of the kind against
them. This is not infrequently doneby extorting or fabricating false
G confession, and when this step is once taken, there isof course
impunity for real offenders, and a great encouragement to crime.
The darogah is henceforth committed to the direction he has
given to the case; and it is hisobject to prevent a discovery of the
truth, and the apprehension of the guilty parties,Who, as far as the
H police are concerned, are now perfectly safe. We are
TOFAN SINGH v. STATE OF TAMIL NADU 665
[R. F. NARIMAN, J.]

persuadedthat any provision to correct the exercise of this power A
by the police will be futile; andwe accordingly propose to remedy
the evil, as far as possible, by the adoption of arule prohibiting any
examination whatever of any accused party by the police, theresult
of which is to constitute a written document.”
(at page 110) B
31. It is important to emphasise that the interpretation of the term
“accused” in section 25 of the Evidence Act is materially different from
that contained in Article 20(3) of the Constitution. The scope of the
section is not limited by time – it is immaterial that the person was not an
accused at the time when the confessional statement was made. This C
was felicitously put by this Court in Deoman Upadhyaya (supra) as
follows:
“By Section 24, in a criminal proceeding against a person, a
confession made by him is inadmissible if it appears to the court
to have been caused by inducement, threat or promise having D
reference to the charge and proceeding from a person in authority.
By Section 25, there is an absolute ban against proof at the trial of
a person accused of an offence, of a confession made to a police
officer. The ban which is partial under Section 24 and complete
under Section 25 applies equally whether or not the person against
whom evidence is sought to be led in a criminal trial was at the E
time of making the confession in custody. For the ban to be
effective the person need not have been accused of an offence
when he made the confession. The expression, “accused person”
in Section 24 and the expression “a person accused of any
offence” have the same connotation, and describe the person F
against whom evidence is sought to be led in a criminal proceeding.
As observed in Pakala Narayan Swami v. Emperor [LR 66 IA
66] by the Judicial Committee of the Privy Council, “Section 25
covers a confession made to a police officer before any
investigation has begun or otherwise not in the course of an
investigation”. The adjectival clause “accused of any offence” is G
therefore descriptive of the person against whom a confessional
statement made by him is declared not provable, and does not
predicate a condition of that person at the time of making the
statement for the applicability of the ban.”
(at page 21) H
666 SUPREME COURT REPORTS [2020] 12 S.C.R.

A 32. Likewise, in Agnoo Nagesia v. State of Bihar (1966) 1 SCR
134, the Court held:
“Section 25 provides: “No confession made to a police officer,
shall be proved as against a person accused of an offence”. The
terms of Section 25 are imperative. A confession made to a police
B officer under any circumstances is not admissible in evidence
against the accused. It covers a confession made when he was
free and not in police custody, as also a confession made before
any investigation has begun. The expression “accused of any
offence” covers a person accused of an offence at the trial whether
or not he was accused of the offence when he made the
C confession.”
(at page 137)
33. Thus, whereas a formal accusation is necessary for invoking
the protection under Article 20(3), the same would be irrelevant for
D invoking the protection under section 25 of the Evidence Act.
34. Section 26 of the Evidence Act extends the protection to
confessional statements made by persons while “in the custody” of a
police-officer, unless it be made in the immediate presence of a
Magistrate. “Custody” is not synonymous with “arrest”, as has been
E held in a number of judgments of this Court – custody could refer to a
situation pre-arrest, as was the case in State of Haryana and Ors. v.
Dinesh Kumar (2008) 3 SCC 222 (see paragraphs 27-29). In fact,
section 46 of the CrPC speaks of “a submission to the custody by word
or action”, which would, inter alia, refer to a voluntary appearance
before a police officer without any formal arrest being made.
F
PROVISIONS CONTAINED IN THE NDPS ACT
35. At this stage, it is important to notice that the NDPS Act has
been held to be a complete code on the subject covered by it. In Noor
Aga (supra), this Court held:
G “2. Several questions of grave importance including the
constitutional validity of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short “the Act”), the standard and extent
of burden of proof on the prosecution vis-à-vis the accused are in
question in this appeal which arises out of a judgment and order
dated 9-6-2006 passed by the High Court of Punjab and Haryana
H
TOFAN SINGH v. STATE OF TAMIL NADU 667
[R. F. NARIMAN, J.]

in Criminal Appeal No. 810-SB of 2000 whereby and whereunder A
an appeal filed by the applicant against the judgment of conviction
and sentence dated 7-6-2000 under Sections 22 and 23 of the Act
had been dismissed.
xxx xxxxxx
75. The Act is a complete code by itself. The Customs Officers B
have been clothed with the powers of police officers under the
Act. It does not, therefore, deal only with a matter of imposition
of penalty or an order of confiscation of the properties under the
Act, but also with the offences having serious consequences.
xxx xxxxxx C

80. The constitutional mandate of equality of law and equal
protection of law as adumbrated under Article 14 of the Constitution
of India cannot be lost sight of. The courts, it is well settled, would
avoid a construction which would attract the wrath of Article 14.
They also cannot be oblivious of the law that the Act is a complete D
code in itself and, thus, the provisions of the 1962 Act cannot be
applied to seek conviction thereunder.”
36. To similar effect, this Court in Mukesh Singh (supra) held:
“85. From the aforesaid scheme and provisions of the NDPS Act,
E
it appears that the NDPS Act is a complete code in itself. Section 41(1)
authorises a Metropolitan Magistrate or a Magistrate of the first class or
any Magistrate of the second class specially empowered by the State
Government in this behalf, may issue a warrant for the arrest of any
person whom he has reason to believe to have committed any offence
punishable under the NDPS Act, or for the search, whether by day or F
by night……Sub-section 2 of Section 41 authorises any such officer of
gazetted rank of the Departments of Central Excise…… as is empowered
in this behalf by general or special order by the Central Government, or
any such officer of the Revenue…….police or any other department of
a State Government as is empowered in this behalf by general or special
G
order, if he has reason to believe from personal knowledge or information
given by any person and taken in writing that any person has committed
an offence punishable under the NDPS Act, authorising any officer
subordinate to him but superior in rank to a peon, sepoy or a constable to
arrest such a person or search a building, conveyance or place whether
H
668 SUPREME COURT REPORTS [2020] 12 S.C.R.

A by day or by night or himself arrest such a person or search a building,
conveyance or place.”
37. The interplay between the CrPC and the provisions of the
NDPS Act is contained in several provisions. It will be noticed that the
CrPC has been expressly excluded when it comes to suspension,
B remission or commutation in any sentence awarded under the NDPS
Act – see section 32A. Equally, nothing contained in section 360 of the
CrPC or in the Probation of Offenders Act, 1958 is to apply to a person
convicted of an offence under the NDPS Act, subject to the exceptions
that such person is under 18 years of age, and that that offence only be
punishable under section 26 or 27 of the NDPS Act – see section 33.
C
38. On the other hand, the CrPC has been made expressly
applicable by the following sections of the NDPS Act:section 34(2), which
refers to the form of a security bond; section 36B, which refers to the
High Court’s powers in appeal and revision; section 50(5), which refers
to searching a person without the intervention of a Gazetted Officer or a
D Magistrate; and section 51, which deals with warrants, arrests, searches
and seizures made under the Act. Equally, the CrPC has been applied
with necessary modifications under section 36A(1)(b), when it comes to
authorising the detention of a person in custody for a period beyond
fifteen days;section 37(1)(b), which contains additional conditions for
E the grant of bail in certain circumstances; and section 53A, which are
exceptions engrafted upon statements made in writing under sections
161, 162 and 172 of the CrPC. Read with sections 4(2) and 5 of the
CrPC, the scheme of the NDPS Act seems to be that the CrPC is
generally followed, except where expressly excluded, or applied with
modifications.
F
39. The Statement of Objects and Reasons for enacting the NDPS
Act is important and states as follows:
“The statutory control over narcotic drugs is exercised in India
through a number of Central and State enactments. The principal
G Central Acts, namely the Opium Act, 1857, the Opium Act, 1878
and the Dangerous Drugs Act, 1930 were enacted a long time
ago. With the passage of time and the developments in the field of
illicit drug traffic and drug abuse at national and international level,
many deficiencies in the existing laws have come to notice, some
of which are indicated below:
H
TOFAN SINGH v. STATE OF TAMIL NADU 669
[R. F. NARIMAN, J.]

(i) The scheme of penalties under the present Acts is not A
sufficiently deterrent to meet the challenge of well organized
gangs of smugglers. The Dangerous Drugs Act, 1930 provides
for a maximum term of imprisonment of 3 years with or
without fine and 4 years imprisonment with or without fine
for repeat offences. Further, no minimum punishment is
B
prescribed in the present laws, as a result of which drug
traffickers have been some times let off by the courts with
nominal punishment. The country has for the last few years
been increasingly facing the problem of transit traffic of drugs
coming mainly from some of our neighbouring countries and
destined mainly to Western countries. C
(ii) The existing Central laws do not provide for investing the
officers of a number of important Central enforcement
agencies like Narcotics, Customs, Central Excise, etc., with
the power of investigation of offences under the said laws.
(iii) Since the enactment of the aforesaid three Central Acts a D
vast body of international law in the field of narcotics control
has evolved through various international treaties and
protocols. The Government of India has been a party to these
treaties and conventions which entail several obligations
which are not covered or are only partly covered by the E
present Acts.
(iv) During recent years new drugs of addiction which have come
to be known as psychotropic substances have appeared on
the scene and posed serious problems to national government.
There is no comprehensive law to enable exercise of control F
over psychotropic substances in India in the manner as
envisaged in the Convention on Psychotropic Substances,
1971 to which India has also acceded.
2. In view of what has been stated above, there is an urgent need
for the enactment of a comprehensive legislation on narcotic drugs G
and psychotropic substances which, inter alia, should consolidate
and amend the existing laws relating to narcotic drugs, strengthen
the existing controls over drug abuse, considerably enhance the
penalties particularly for trafficking offences, make provisions for
exercising effective control over psychotropic substances and
make provisions for the implementation of international conventions H
670 SUPREME COURT REPORTS [2020] 12 S.C.R.

A relating to narcotic drugs and psychotropic substances to which
India has become a party.
3. The Bill seeks to achieve the above objects.”
(emphasis supplied)
B 40. The very first thing that this Statement addresses is the woeful
inadequacy of three old Acts, insofar as the scheme of penalties is
concerned, which were not sufficiently deterrent to meet the challenge
of well organised gangs of smugglers, together with the importance of
investing, for the first time, the officers of central enforcement agencies
with the power of investigation of offences under the new law.
C Undoubtedly, the NDPS Act is a comprehensive legislation which makes
provisions for exercising control over narcotic drugs and psychotropic
substances, at the heart of which is the power vested in various officers
to investigate offences under the Act, so as to prevent and punish the
same against offenders being, inter alia,organised gangs of smugglers
who indulge in what is considered by Parliament to be a menace to
D
society. Also, the preamble to the NDPS Act states:
“An Act to consolidate and amend the law relating to narcotic
drugs, to make stringent provisions for the control and regulation
of operations relating to narcotic drugs and psychotropic
substances, to provide for the forfeiture of property derived from,
E or used in, illicit traffic in narcotic drugs and psychotropic
substances, to implement the provisions of the International
Convention on Narcotic Drugs and Psychotropic Substances and
for matters connected therewith.”
41. This itself refers to the Act being a “stringent” measure to
F combat the menace of crimes relatable to drugs and psychotropic
substances. Under Chapter IV, which deals with “Offences and
Penalties”, sections 15-24 speak of various drugs and psychotropic
substances, in which the golden thread running through these sections is
that where the contravention involves “small quantity” as defined, there
G can be a rigorous imprisonment for a term that may extend to one year,
or a fine that may extend to ten thousand rupees or both; where the
contravention involves an intermediate quantity, i.e. between “small”
and “commercial” quantity, with rigorous imprisonment that may extend
to ten yearsand with fine that may extend to one lakh rupees; and where
the contravention involves “commercial quantity” as defined, with rigorous
H imprisonment for a minimum of ten years but which may extend to twenty
TOFAN SINGH v. STATE OF TAMIL NADU 671
[R. F. NARIMAN, J.]

years, and also be liable to a fine which shall not be less than one lakh, A
but which may extend to two lakhs – the court, for reasons to be recorded,
is also given the power to impose a fine exceeding two lakhs. Under
sections 28 and 29, punishments for attempts to commit offences, and
for abetment and criminal conspiracy, are then set out. An extremely
important section is section 30, where even preparation to commit an
B
offence is made an offence1. Under section 31, where a person is already
convicted of the commission of, or attempt to commit, or abetment of, or
criminal conspiracy to commit, any of the offences punishable under the
NDPS Act, and is subsequently convicted of the commission of, or
attempt to commit, or abetment of, or criminal conspiracy to commit, an
offence punishable under the NDPS Act, the punishment then goes to C
up to a term which may extend to one and one-half times the maximum
term of imprisonment, and shall also be liable to a fine which shall extend
to one and one-half times of the maximum amount of fine. In certain
circumstances under section 31A, the death penalty is also awarded.
Under section 32A, no sentence awarded under the NDPS Act, other
D
than a sentence under section 27, shall be suspended, remitted or
commuted. Equally, we have seen how under section 33, the Probation
of Offenders Act, 1958 does not apply where the offender is above 18,
or if the offence is for offences other than those under sections 26 and
27 of the Act.
42. Several presumptions are also made under the NDPS Act in E
which the burden of proof is reversed, now being on the accused. They
are all to be found in three sections – sections 35, 54 and 66. These
sections state as follows:
“35. Presumption of culpable mental state.—(1) In any
prosecution for an offence under this Act which requires a culpable F
mental state of the accused, the court shall presume the existence
of such mental state but it shall be a defence for the accused to
prove the fact that he had no such mental state with respect to
the act charged as an offence in that prosecution.
Explanation.—In this section “culpable mental state” includes G
intention, motive, knowledge of a fact and belief in, or reason to
believe, a fact.
1
It may be remembered that in the Indian Penal Code, 1860 ("IPC"), the only section
where preparation is made an offence, is “preparation to commit dacoity”. See Section
399, IPC. H
672 SUPREME COURT REPORTS [2020] 12 S.C.R.

A (2) For the purpose of this section, a fact is said to be proved only
when the court believes it to exist beyond a reasonable doubt and
not merely when its existence is established by a preponderance
of probability.”
“54. Presumption from possession of illicit articles.—In trials
B under this Act, it may be presumed, unless and until the contrary
is proved, that the accused has committed an offence under this
Act in respect of—
(a) any narcotic drug or psychotropic substance or controlled
substance;
C (b) any opium poppy, cannabis plant or coca plant growing on any
land which he has cultivated;
(c) any apparatus specially designed or any group of utensils
specially adopted for the manufacture of any narcotic drug or
psychotropic substance or controlled substance; or
D
(d) any materials which have undergone any process towards the
manufacture of a narcotic drug or psychotropic substance or
controlled substance, or any residue left of the materials from
which any narcotic drug or psychotropic substance or controlled
substance has been manufactured,
E
for the possession of which he fails to account satisfactorily.”
“66. Presumption as to documents in certain cases.—Where
any document—
(i) is produced or furnished by any person or has been seized
F from the custody or control of any person, in either case, under
this Act or under any other law, or
(ii) has been received from any place outside India (duly
authenticated by such authority or person and in such manner as
may be prescribed by the Central Government) in the course of
G investigation of any offence under this Act alleged to have been
committed by a person, and such document is tendered in any
prosecution under this Act in evidence against him, or against him
and any other person who is tried jointly with him, the court shall—
(a) presume, unless the contrary is proved, that the signature and
H every other part of such document which purports to be in the
TOFAN SINGH v. STATE OF TAMIL NADU 673
[R. F. NARIMAN, J.]

handwriting of any particular person or which the court may A
reasonably assume to have been signed by, or to be in the
handwriting of, any particular person, is in that person’s handwriting;
and in the case of a document executed or attested, that it was
executed or attested by the person by whom it purports to have
been so executed or attested;
B
(b) admit the document in evidence, notwithstanding that it is not
duly stamped, if such document is otherwise admissible in evidence;
(c) in a case falling under clause (i), also presume, unless the
contrary is proved, the truth of the contents of such document.”
43. Section 37(1) makes all offences under the Act cognizable C
and non-bailable, with stringent conditions for bail attached:
“37. Offences to be cognizable and non-bailable.—(1)
Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974),—
D
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences under
section 19 or section 24 or section 27A and also for offences
involving commercial quantity shall be released on bail or on his
own bond unless—
E
(i) the Public Prosecutor has been given an opportunity to oppose
the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court
is satisfied that there are reasonable grounds for believing that he
is not guilty of such offence and that he is not likely to commit any F
offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of
sub-section (1) are in addition to the limitations under the Code of
Criminal Procedure, 1973 (2 of 1974) or any other law for the
time being in force on granting of bail.” G
44. Under section 40, where a person is convicted of any of the
offences punishable under the Act, the court may, in addition, publish at
the expense of such person – in a newspaper or other manner – the
factum of such conviction. The NDPS Act is said to be in addition to the
Customs Act, 1962 and the Drugs and Cosmetics Act, 1940, so that, H
674 SUPREME COURT REPORTS [2020] 12 S.C.R.

A notwithstanding that offences may be made out under those Acts,
offences under the NDPS Act will continue to be tried as such – see
sections 79 and 80.
45. Given the stringent nature of the NDPS Act, several sections
provide safeguards so as to provide a balance between investigation and
B trial of offences under the Act, and the fundamental rights of the citizen.
Several safeguards are contained in section 42, which states as follows:
“42. Power of entry, search, seizure and arrest without
warrant or authorisation.—(1) Any such officer (being an officer
superior in rank to a peon, sepoy or constable) of the departments
C of central excise, narcotics, customs, revenue intelligence or any
other department of the Central Government including para-
military forces or armed forces as is empowered in this behalf by
general or special order by the Central Government, or any such
officer (being an officer superior in rank to a peon, sepoy or
constable) of the revenue, drugs control, excise, police or any
D other department of a State Government as is empowered in this
behalf by general or special order of the State Government, if he
has reason to believe from personal knowledge or information
given by any person and taken down in writing that any narcotic
drug, or psychotropic substance, or controlled substance in respect
E of which an offence punishable under this Act has been committed
or any document or other article which may furnish evidence of
the commission of such offence or any illegally acquired property
or any document or other article which may furnish evidence of
holding any illegally acquired property which is liable for seizure
or freezing or forfeiture under Chapter VA of this Act is kept or
F concealed in any building, conveyance or enclosed place, may
between sunrise and sunset,—
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any
G obstacle to such entry;
(c) seize such drug or substance and all materials used in the
manufacture thereof and any other article and any animal or
conveyance which he has reason to believe to be liable to
confiscation under this Act and any document or other article
which he has reason to believe may furnish evidence of the
H
TOFAN SINGH v. STATE OF TAMIL NADU 675
[R. F. NARIMAN, J.]

commission of any offence punishable under this Act or furnish A
evidence of holding any illegally acquired property which is liable
for seizure or freezing or forfeiture under Chapter VA of this Act;
and
(d) detain and search, and, if he thinks proper, arrest any person
whom he has reason to believe to have committed any offence B
punishable under this Act:
Provided that in respect of a holder of a licence for manufacture
of manufactured drugs or psychotropic substances or controlled
substances, granted under this Act or any rule or order made
thereunder, such power shall be exercised by an officer not below C
the rank of sub-inspector:
Provided further that if such officer has reason to believe that a
search warrant or authorisation cannot be obtained without
affording opportunity for the concealment of evidence or facility
for the escape of an offender, he may enter and search such D
building, conveyance or enclosed place at any time between sunset
and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under
sub-section (1) or records grounds for his belief under the proviso
thereto, he shall within seventy-two hours send a copy thereof to E
his immediate official superior.”
46. From this section it is clear that only when the concerned
officer has “reason to believe” from personal knowledge or information
given by any person and taken down in writing that an offence has been
committed, that the concerned officer may, only between sunrise and F
sunset, enter, search, seize drugs and materials, and arrest any person
who he believes has committed any offence. By the first proviso, this
can be done only by an officer not below the rank of sub-inspector.
Under sub-section (2) in addition, where the information in writing is
given, the officer involved must send a copy thereof to his immediate
official superior within seventy-two hours. It is important here to contrast G
“reason to believe” with the expression “reason to suspect”, which is
contained in section 49 of the NDPS Act. Thus, “reason to believe” has
been construed by this Court in A.S. Krishnan v. State of Kerala (2004)
11 SCC 576as follows:
H
676 SUPREME COURT REPORTS [2020] 12 S.C.R.

A “9. Under IPC, guilt in respect of almost all the offences is fastened
either on the ground of “intention” or “knowledge” or “reason to
believe”. We are now concerned with the expressions
“knowledge” and “reason to believe”. “Knowledge” is an
awareness on the part of the person concerned indicating his state
of mind. “Reason to believe” is another facet of the state of mind.
B
“Reason to believe” is not the same thing as “suspicion” or “doubt”
and mere seeing also cannot be equated to believing. “Reason to
believe” is a higher level of state of mind. Likewise “knowledge”
will be slightly on a higher plane than “reason to believe”. A person
can be supposed to know where there is a direct appeal to his
C senses and a person is presumed to have a reason to believe if he
has sufficient cause to believe the same. Section 26 IPC explains
the meaning of the words “reason to believe” thus:
“26. ‘Reason to believe’.—A person is said to have ‘reason to
believe’ a thing, if he has sufficient cause to believe that thing but
D not otherwise.””
47. Section 50 of the NDPS Act contains extremely important
conditions under which a search of persons shall be conducted. Section
50 states:
“50. Conditions under which search of persons shall be
E conducted.—(1) When any officer duly authorised under section
42 is about to search any person under the provisions of section
41, section 42 or section 43, he shall, if such person so requires,
take such person without unnecessary delay to nearest Gazetted
Officer of any of the departments mentioned in section 42 or to
F the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person
until he can bring him before the Gazetted Officer or the Magistrate
referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any
G such person is brought shall, if he sees no reasonable ground for
search, forthwith discharge the person but otherwise shall direct
that search be made.
(4) No female shall be searched by anyone excepting a female.

H
TOFAN SINGH v. STATE OF TAMIL NADU 677
[R. F. NARIMAN, J.]

(5) When an officer duly authorised under section 42 has reason A
to believe that it is not possible to take the person to be searched
to the nearest Gazetted Officer or Magistrate without the possibility
of the person to be searched parting with possession of any narcotic
drug or psychotropic substance, or controlled substance or article
or document, he may, instead of taking such person to the nearest
B
Gazetted Officer or Magistrate, proceed to search the person as
provided under section100 of the Code of Criminal Procedure,
1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer
shall record the reasons for such belief which necessitated such
search and within seventy-two hours send a copy thereof to his C
immediate official superior.”
48. In Baldev Singh (supra), this Court had held:
“17. The trial court in those cases had acquitted the accused on
the ground that the arrest, search and seizure were conducted in D
violation of some of the “relevant and mandatory” provisions of
the NDPS Act. The High Court declined to grant appeal against
the order of acquittal. The State of Punjab thereupon filed appeals
by special leave in this Court. In some other cases, where the
accused had been convicted, they also filed appeals by special
leave questioning their conviction and sentence on the ground that E
their trials were illegal because of non-compliance with the
safeguards provided under Section 50 of the NDPS Act. A two-
Judge Bench speaking through K. Jayachandra Reddy, J.
considered several provisions of the NDPS Act governing arrest,
search and seizure and, in particular, the provisions of Sections F
41, 42, 43, 44, 49, 50, 51, 52 and 57 of the NDPS Act as well as
the provisions of the Code of Criminal Procedure relating to search
and seizure effected during investigation of a criminal case. Dealing
with Section 50, it was held that in the context in which the right
had been conferred, it must naturally be presumed that it is
imperative on the part of the officer to inform the person to be G
searched of his right that if he so requires he shall be searched
before a gazetted officer or Magistrate and on such request being
made by him, to be taken before the gazetted officer or Magistrate
for further proceedings. The reasoning given in Balbir Singh
case [(1994) 3 SCC 299] was that to afford an opportunity to the H
678 SUPREME COURT REPORTS [2020] 12 S.C.R.

A person to be searched “if he so requires to be searched before a
gazetted officer or a Magistrate” he must be made aware of that
right and that could be done only by the empowered officer
by informing him of the existence of that right. The Court went
on to hold that failure to inform the person to be searched of that
right and if he so requires, failure to take him to the gazetted
B
officer or the Magistrate, would mean non-compliance with the
provisions of Section 50 which in turn would “affect the prosecution
case and vitiate the trial”. The following conclusions were arrived
at by the two-Judge Bench in State of Punjab v. Balbir Singh:
“25. The questions considered above arise frequently before the
C trial courts. Therefore we find it necessary to set out our
conclusions which are as follows:
(1) If a police officer without any prior information as contemplated
under the provisions of the NDPS Act makes a search or arrests
a person in the normal course of investigation into an offence or
D suspected offences as provided under the provisions of CrPC
and when such search is completed at that stage Section 50 of
the NDPS Act would not be attracted and the question of complying
with the requirements thereunder would not arise. If during such
search or arrest there is a chance recovery of any narcotic drug
E or psychotropic substance then the police officer, who is not
empowered, should inform the empowered officer who should
thereafter proceed in accordance with the provisions of the NDPS
Act. If he happens to be an empowered officer also, then from
that stage onwards, he should carry out the investigation in
accordance with the other provisions of the NDPS Act.
F
(2-A) Under Section 41(1) only an empowered Magistrate can
issue warrant for the arrest or for the search in respect of offences
punishable under Chapter IV of the Act etc. when he has reason
to believe that such offences have been committed or such
substances are kept or concealed in any building, conveyance or
G place. When such warrant for arrest or for search is issued by a
Magistrate who is not empowered, then such search or arrest if
carried out would be illegal. Likewise only empowered officers
or duly authorized officers as enumerated in Sections 41(2) and
42(1) can act under the provisions of the NDPS Act. If such
H
TOFAN SINGH v. STATE OF TAMIL NADU 679
[R. F. NARIMAN, J.]

arrest or search is made under the provisions of the NDPS Act A
by anyone other than such officers, the same would be illegal.
(2-B) Under Section 41(2) only the empowered officer can give
the authorisation to his subordinate officer to carry out the arrest
of a person or search as mentioned therein. If there is a
contravention, that would affect the prosecution case and vitiate B
the conviction.
(2-C) Under Section 42(1) the empowered officer if has a prior
information given by any person, that should necessarily be taken
down in writing. But if he has reason to believe from personal
knowledge that offences under Chapter IV have been committed C
or materials which may furnish evidence of commission of such
offences are concealed in any building etc. he may carry out the
arrest or search without a warrant between sunrise and sunset
and this provision does not mandate that he should record his
reasons of belief. But under the proviso to Section 42(1) if such
officer has to carry out such search between sunset and sunrise, D
he must record the grounds of his belief.
To this extent these provisions are mandatory and contravention
of the same would affect the prosecution case and vitiate the
trial.
E
(3) Under Section 42(2) such empowered officer who takes down
any information in writing or records the grounds under proviso to
Section 42(1) should forthwith send a copy thereof to his immediate
official superior. If there is total non-compliance of this provision
the same affects the prosecution case. To that extent it is
mandatory. But if there is delay whether it was undue or whether F
the same has been explained or not, will be a question of fact in
each case.
(4-A) If a police officer, even if he happens to be an ‘empowered’
officer while effecting an arrest or search during normal
investigation into offences purely under the provisions of CrPC G
fails to strictly comply with the provisions of Sections 100 and 165
CrPC including the requirement to record reasons, such failure
would only amount to an irregularity.
(4-B) If an empowered officer or an authorised officer under
Section 41(2) of the Act carries out a search, he would be doing H
680 SUPREME COURT REPORTS [2020] 12 S.C.R.

A so under the provisions of CrPC namely Sections 100 and 165
CrPC and if there is no strict compliance with the provisions of
CrPC then such search would not per se be illegal and would not
vitiate the trial.
The effect of such failure has to be borne in mind by the courts
B while appreciating the evidence in the facts and circumstances of
each case.
(5) On prior information the empowered officer or authorised
officer while acting under Sections 41(2) or 42 should comply
with the provisions of Section 50 before the search of the person
C is made and such person should be informed that if he so
requires, he shall be produced before a gazetted officer or a
Magistrate as provided thereunder. It is obligatory on the part
of such officer to inform the person to be searched. Failure
to inform the person to be searched and if such person so
requires, failure to take him to the gazetted officer or the
D Magistrate, would amount to non-compliance of Section 50
which is mandatory and thus it would affect the prosecution
case and vitiate the trial. After being so informed whether such
person opted for such a course or not would be a question of fact.
(6) The provisions of Sections 52 and 57 which deal with the
E steps to be taken by the officers after making arrest or seizure
under Sections 41 to 44 are by themselves not mandatory. If there
is non-compliance or if there are lapses like delay etc. then the
same has to be examined to see whether any prejudice has been
caused to the accused and such failure will have a bearing on the
F appreciation of evidence regarding arrest or seizure as well as on
merits of the case.”
(emphasis in original)
xxx xxxxxx
57. On the basis of the reasoning and discussion above, the
G
following conclusions arise:
(1) That when an empowered officer or a duly authorised officer
acting on prior information is about to search a person, it is
imperative for him to inform the concerned person of his right
under Sub-section (1) of Section 50 of being taken to the nearest
H
TOFAN SINGH v. STATE OF TAMIL NADU 681
[R. F. NARIMAN, J.]

Gazetted Officer or the nearest Magistrate for making the search. A
However, such information may not necessarily be in writing;
(2) That failure to inform the concerned person about the existence
of his right to be searched before a Gazetted Officer or a
Magistrate would cause prejudice to an accused;
(3) That a search made, by an empowered officer, on prior B
information, without informing the person of his right that, if he so
requires, he shall be taken before a Gazetted Officer or a
Magistrate for search and in case he so opts, failure to conduct
his search before a Gazetted Officer or a Magistrate, may not
vitiate the trial but would render the recovery of the illicit article C
suspect and vitiate the conviction and sentence of an accused,
where the conviction has been recorded only on the basis of the
possession of the illicit article, recovered from his person, during
a search conducted in violation of the provisions of Section 50 of
the Act;
D
(4) That there is indeed need to protect society from criminals.
The societal intent in safety will suffer if persons who commit
crimes are let off because the evidence against them is to be
treated as if it does not exist. The answer, therefore, is that the
investigating agency must follow the procedure as envisaged by
the statute scrupulously and the failure to do so must be viewed E
by the higher authorities seriously inviting action against the
concerned official so that the laxity on the part of the investigating
authority is curbed. In every case the end result is important but
the means to achieve it must remain above board. The remedy
cannot be worse than the disease itself. The legitimacy of judicial F
process may come under cloud if the court is seen to condone
acts of lawlessness conducted by the investigating agency during
search operations and may also undermine respect for law and
may have the effect of unconscionably compromising the
administration of justice. That cannot be permitted. An accused is
entitled to a fair trial. A conviction resulting from an unfair trial is G
contrary to our concept of justice. The use of evidence collected
in breach of the safeguards provided by Section 50 at the trial,
would render the trial unfair.
(5) That whether or not the safeguards provided in Section 50 have
been duly observed would have to be determined by the Court on H
682 SUPREME COURT REPORTS [2020] 12 S.C.R.

A the basis of evidence led at the trial. Finding on that issue, one
way or the other, would be relevant for recording an order of
conviction or acquittal. Without giving an opportunity to the
prosecution to establish, at the trial, that the provisions of Section
50, and particularly the safeguards provided therein were duly
complied with, it would not be permissible to cut-short a criminal
B
trial;
(6) That in the context in which the protection has been
incorporated in Section 50 for the benefit of the person intended
to be searched, we do not express any opinion whether the
provisions of Section 50 are mandatory or directory, but, hold that
C failure to inform the concerned person of his right as emanating
from Sub-section (1) of Section 50, may render the recovery of
the contraband suspect and the conviction and sentence of an
accused bad and unsustainable in law;
(7) That an illicit article seized from the person of an accused
D during search conducted in violation of the safeguards provided
in Section 50 of the Act cannot be used as evidence of proof of
unlawful possession of the contraband on the accused though any
other material recovered during that search may be relied upon
by the prosecution, in other proceedings, against an accused,
E notwithstanding the recovery of that material during an illegal
search;
(8) A presumption under Section 54 of the Act can only be raised
after the prosecution has established that the accused was found
to be in possession of the contraband in a search conducted in
F accordance with the mandate of Section 50. An illegal search
cannot entitle the prosecution to raise a presumption under Section
54 of the Act
(9) That the judgment in Pooran Mal’s case cannot be understood
to have laid down that an illicit article seized during a search of a
G person, on prior information, conducted in violation of the provisions
of Section 50 of the Act, can by itself be used as evidence of
unlawful possession of the illicit article on the person from whom
the contraband has been seized during the illegal search;
(10) That the judgment in Ali Mustaffa’s case correctly interprets
and distinguishes the judgment in Pooran Mal’s case and the broad
H
TOFAN SINGH v. STATE OF TAMIL NADU 683
[R. F. NARIMAN, J.]

observations made in Pirthi Chand’s case and Jasbir Singh’s case A
are not in tune with the correct exposition of law as laid down in
Pooran Mal’s case. The above conclusions are not a summary of
our judgment and have to be read and considered in the light of
the entire discussion contained in the earlier part.”
49. Immediately after this judgment, Parliament enacted sub- B
sections (5) and (6). Despite the enactment of these provisions, this
Court in Vijaysinh Chandubha Jadeja (supra) specifically held as
follows:
“24. Although the Constitution Bench in Baldev Singh
case [(1999) 6 SCC 172] did not decide in absolute terms the C
question whether or not Section 50 of the NDPS Act was directory
or mandatory yet it was held that provisions of sub-section (1) of
Section 50 make it imperative for the empowered officer to
“inform” the person concerned (suspect) about the existence of
his right that if he so requires, he shall be searched before a gazetted
officer or a Magistrate; failure to “inform” the suspect about the D
existence of his said right would cause prejudice to him, and in
case he so opts, failure to conduct his search before a gazetted
officer or a Magistrate, may not vitiate the trial but would render
the recovery of the illicit article suspect and vitiate the conviction
and sentence of an accused, where the conviction has been E
recorded only on the basis of the possession of the illicit article,
recovered from the person during a search conducted in violation
of the provisions of Section 50 of the NDPS Act. The Court also
noted that it was not necessary that the information required to be
given under Section 50 should be in a prescribed form or in writing
but it was mandatory that the suspect was made aware of the F
existence of his right to be searched before a gazetted officer or
a Magistrate, if so required by him. We respectfully concur with
these conclusions. Any other interpretation of the provision would
make the valuable right conferred on the suspect illusory and a
farce. G
xxx xxxxxx
27. It can, thus, be seen that apart from the fact that in Karnail
Singh [(2009) 8 SCC 539], the issue was regarding the scope
and applicability of Section 42 of the NDPS Act in the matter of
H
684 SUPREME COURT REPORTS [2020] 12 S.C.R.

A conducting search, seizure and arrest without warrant or
authorisation, the said decision does not depart from the dictum
laid down in Baldev Singh case [(1999) 6 SCC 172] insofar as
the obligation of the empowered officer to inform the suspect of
his right enshrined in sub-section (1) of Section 50 of the NDPS
Act is concerned. It is also plain from the said paragraph that the
B
flexibility in procedural requirements in terms of the two newly
inserted sub-sections can be resorted to only in emergent and
urgent situations, contemplated in the provision, and not as a matter
of course. Additionally, sub-section (6) of Section 50 of the NDPS
Act makes it imperative and obligatory on the authorised officer
C to send a copy of the reasons recorded by him for his belief in
terms of sub-section (5), to his immediate superior officer, within
the stipulated time, which exercise would again be subjected to
judicial scrutiny during the course of trial.
xxx xxxxxx
D 29. In view of the foregoing discussion, we are of the firm opinion
that the object with which the right under Section 50(1) of the
NDPS Act, by way of a safeguard, has been conferred on the
suspect viz. to check the misuse of power, to avoid harm to
innocent persons and to minimise the allegations of planting or
E foisting of false cases by the law enforcement agencies, it would
be imperative on the part of the empowered officer to apprise the
person intended to be searched of his right to be searched before
a gazetted officer or a Magistrate. We have no hesitation in holding
that insofar as the obligation of the authorised officer under sub-
section (1) of Section 50 of the NDPS Act is concerned, it is
F mandatory and requires strict compliance. Failure to comply with
the provision would render the recovery of the illicit article suspect
and vitiate the conviction if the same is recorded only on the basis
of the recovery of the illicit article from the person of the accused
during such search. Thereafter, the suspect may or may not choose
G to exercise the right provided to him under the said provision.
xxx xxxxxx
31. We are of the opinion that the concept of “substantial
compliance” with the requirement of Section 50 of the NDPS
Act introduced and read into the mandate of the said section
H in Joseph Fernandez [(2000) 1 SCC 707] and Prabha Shankar
TOFAN SINGH v. STATE OF TAMIL NADU 685
[R. F. NARIMAN, J.]

Dubey [(2004) 2 SCC 56] is neither borne out from the language A
of sub-section (1) of Section 50 nor is it in consonance with the
dictum laid down in Baldev Singh case [(1999) 6 SCC 172].
Needless to add that the question whether or not the procedure
prescribed has been followed and the requirement of Section 50
had been met, is a matter of trial. It would neither be possible nor
B
feasible to lay down any absolute formula in that behalf.”
50. Thus, this extremely important safeguard continues, as has
been originally enacted, subject only to the exceptions in sub-sections
(5) and (6), which can only be used in urgent and emergent situations.
This Court has clearly held that non-compliance of this provision would
lead to the conviction of the accused being vitiated, and that “substantial” C
compliance with these provisions would not save the prosecution case.
51. Likewise, section 52 of the NDPS Act states as follows:
“52. Disposal of persons arrested and articles seized.—(1)
Any officer arresting a person under section 41, section 42, section D
43 or section 44 shall, as soon as may be, inform him of the grounds
for such arrest.
(2) Every person arrested and article seized under warrant issued
under sub-section (1) of section 41 shall be forwarded without
unnecessary delay to the Magistrate by whom the warrant was E
issued.
(3) Every person arrested and article seized under sub-section
(2) of section 41, section 42, section 43 or section 44 shall be
forwarded without unnecessary delay to—
(a) the officer-in-charge of the nearest police station, or F
(b) the officer empowered under section 53.
(4) The authority or officer to whom any person or article is
forwarded under sub-section (2) or sub-section (3) shall, with all
convenient despatch, take such measures as may be necessary
for the disposal according to law of such person or article.” G

52. Section 52(1)-(3) contains three separate safeguards, insofar
as disposal of persons arrested and articles seized are concerned.
53. Section 57 then speaks of a person making an arrest or seizure
having to make a full report of all the particulars of such arrest or seizure H
686 SUPREME COURT REPORTS [2020] 12 S.C.R.

A to his immediate official superior within forty-eight hours. Equally, under
section 57A, whenever any officer notified under section 53 makes an
arrest or seizure under the Act, the officer shall make a report of the
illegally acquired properties of such person to the jurisdictional competent
authority within ninety days of the arrest or seizure. Section 58 is extremely
important, and is set out hereinbelow:
B
“58. Punishment for vexatious entry, search, seizure or
arrest.—(1) Any person empowered under section 42 or section
43 or section 44 who—
(a) without reasonable ground of suspicion enters or searches, or
C causes to be entered or searched, any building, conveyance or
place;
(b) vexatiously and unnecessarily seizes the property of any person
on the pretence of seizing or searching for any narcotic drug or
psychotropic substance or other article liable to be confiscated
D under this Act, or of seizing any document or other article liable to
be seized under section 42, section 43 or section 44; or
(c) vexatiously and unnecessarily detains, searches or arrests any
person, shall be punishable with imprisonment for a term which
may extend to six months or with fine which may extend to one
E thousand rupees, or with both.
(2) Any person wilfully and maliciously giving false information
and so causing an arrest or a search being made under this Act
shall be punishable with imprisonment for a term which may extend
to two years or with fine or with both.”
F 54. This, more than any other provision, makes it clear that a
person’s privacy is not to be trifled with, because if it is, the officer who
trifles with it is himself punishable under the provision. Under section 63,
which contains the procedure in making confiscations, the first proviso
to sub-section (2) makes it clear that no order of confiscation of an
article or thing shall be made until the expiry of one month from the date
G
of seizure, or without hearing any person who may claim any right thereto
and the evidence which he produces in respect of his claim.
55. Given the stringent provisions of the NDPS Act, together with
the safeguards mentioned in the provisions discussed above, it is important
to note that statutes like the NDPS Act have to be construed bearing in
H
TOFAN SINGH v. STATE OF TAMIL NADU 687
[R. F. NARIMAN, J.]

mind the fact that the severer the punishment, the greater the care taken A
to see that the safeguards provided in the statute are scrupulously
followed. This was laid down in paragraph 28 of Baldev Singh
(supra).That the NDPS Act is predominantly a penal statute is no longer
res integra.In Directorate of Revenue and Anr. v. Mohammed Nisar
Holia (2008) 2 SCC 370, this Court held:
B
“9. The NDPS Act is a penal statute. It invades the rights of an
accused to a large extent. It raises a presumption of a culpable
mental state. Ordinarily, even an accused may not be released on
bail having regard to Section 37 of the Act. The court has the
power to publish names, address and business, etc. of the offenders.
Any document produced in evidence becomes admissible. A vast C
power of calling for information upon the authorities has been
conferred by reason of Section 67 of the Act.
10. Interpretation and/or validity in regard to the power of search
and seizure provided for under the said Act came up for
consideration in Balbir Singh case [(1994) 3 SCC 299] wherein D
it was held:
“10. It is thus clear that by a combined reading of Sections 41, 42,
43 and 51 of the NDPS Act and Section 4 CrPC regarding arrest
and search under Sections 41, 42 and 43, the provisions of CrPC,
namely, Sections 100 and 165 would be applicable to such arrest E
and search. Consequently the principles laid down by various courts
as discussed above regarding the irregularities and illegalities in
respect of arrest and search would equally be applicable to the
arrest and search under the NDPS Act also depending upon the
facts and circumstances of each case. F
11. But there are certain other embargoes envisaged under
Sections 41 and 42 of the NDPS Act. Only a Magistrate so
empowered under Section 41 can issue a warrant for arrest and
search where he has reason to believe that an offence under
Chapter IV has been committed so on and so forth as mentioned G
therein. Under sub-section (2) only a gazetted officer or other
officers mentioned and empowered therein can give an
authorisation to a subordinate to arrest and search if such officer
has reason to believe about the commission of an offence and
after reducing the information, if any, into writing. Under Section
42 only officers mentioned therein and so empowered can make H
688 SUPREME COURT REPORTS [2020] 12 S.C.R.

A the arrest or search as provided if they have reason to believe
from personal knowledge or information. In both these provisions
there are two important requirements. One is that the Magistrate
or the officers mentioned therein firstly be empowered and they
must have reason to believe that an offence under Chapter IV
has been committed or that such arrest or search was necessary
B
for other purposes mentioned in the provision. So far as the first
requirement is concerned, it can be seen that the legislature
intended that only certain Magistrates and certain officers of higher
rank and empowered can act to effect the arrest or search. This
is a safeguard provided having regard to the deterrent sentences
C contemplated and with a view that innocent persons are not
harassed. Therefore if an arrest or search contemplated under
these provisions of NDPS Act has to be carried out, the same can
be done only by competent and empowered Magistrates or officers
mentioned thereunder.”
D 11. Power to make search and seizure as also to arrest an accused
is founded upon and subject to satisfaction of the officer as the
term “reason to believe” has been used. Such belief may be
founded upon secret information that may be orally conveyed by
the informant. Draconian provision which may lead to a harsh
sentence having regard to the doctrine of “due process” as
E adumbrated under Article 21 of the Constitution of India requires
striking of balance between the need of law and enforcement
thereof, on the one hand, and protection of citizen from oppression
and injustice on the other.
12. This Court in Balbir Singh [(1994) 3 SCC 299] referring
F to Miranda v. State of Arizona [384 US 436 (1966)] while
interpreting the provisions of the Act held that not only the
provisions of Section 165 of the Code of Criminal Procedure would
be attracted in the matter of search and seizure but the same
must comply with right of the accused to be informed about the
G requirement to comply with the statutory provisions.
xxx xxxxxx
16. It is not in dispute that the said Act prescribes stringent
punishment. A balance, thus, must be struck in regard to the mode
and manner in which the statutory requirements are to be complied
H with vis-à-vis the place of search and seizure.”
TOFAN SINGH v. STATE OF TAMIL NADU 689
[R. F. NARIMAN, J.]

56. Likewise, in Union of India v. Bal Mukund (2009) 12 SCC A
161, this Court held:
“28. Where a statute confers such drastic powers and seeks to
deprive a citizen of its liberty for not less than ten years, and making
stringent provisions for grant of bail, scrupulous compliance with the
statutory provisions must be insisted upon.” B
57. With this pronouncement of the law in mind, let us now examine
the two questions that have been referred to us.
SCOPE OF SECTION 67 OF THE NDPS ACT
58. Section 67 of the NDPS Act is set out hereinbelow: C
“67. Power to call for information, etc.—Any officer referred
to in section 42 who is authorised in this behalf by the Central
Government or a State Government may, during the course of
any enquiry in connection with the contravention of any provision
of this Act,— D
(a) call for information from any person for the purpose of satisfying
himself whether there has been any contravention of the provisions
of this Act or any rule or order made thereunder;
(b) require any person to produce or deliver any document or
thing useful or relevant to the enquiry; E
(c) examine any person acquainted with the facts and
circumstances of the case.”
59. The marginal note to the section indicates that it refers only to
the power to “call for information, etc.”. As has been held by this Court
in K.P. Varghese v. Income Tax Officer, Ernakulam and Anr. (1981) F
4 SCC 173, a marginal note is an important internal tool for indicating the
meaning and purpose of a section in a statute, as it indicates the “drift”
of the provision. The Court held as follows:
“9. This interpretation of sub-section (2) is strongly supported by
the marginal note to Section 52 which reads “Consideration for G
transfer in cases of understatement”. It is undoubtedly true that
the marginal note to a section cannot be referred to for the purpose
of construing the section but it can certainly be relied upon as
indicating the drift of the section or, to use the words of Collins,
M.R. in Bushel v. Hammond [(1904) 2 KB 563] to show what H
690 SUPREME COURT REPORTS [2020] 12 S.C.R.

A the section is dealing with. It cannot control the interpretation of
the words of a section particularly when the language of the section
is clear and unambiguous but, being part of the statute, it prima
facie furnishes some clue as to the meaning and purpose of the
section (vide Bengal Immunity Company Limited v. State of
Bihar [(1955) 2 SCR 603]).”
B
60. Secondly, it isonly an officer referred to in section 42 who
may use the powers given under section 67 in order to make an “enquiry”
in connection with the contravention of any provision of this Act. The
word “enquiry” has been used in section 67 to differentiate it from
“inquiry” as used in section 53A, which is during the course of investigation
C of offences2.As a matter of fact, the notifications issued under the Act
soon after the Act came into force, which will be referred to later in the
judgment, specifically speak of the powers conferred under section 42(1)
read with section 67. This is an important executive reading of the NDPS
Act, which makes it clear that the powers to be exercised under section
D 67 are to be exercised in conjunction with the powers that are delineated
in section 42(1). Thus, in Desh Bandhu Gupta & Co. v. Delhi Stock
Exchange Assn. Ltd. (1979) 4 SCC 565, this Court referred to the
principle of “contemporanea expositio” in the context of an executive
interpretation of a statute, as follows:
E “9…The principle of contemporanea expositio (interpreting a
statute or any other document by reference to the exposition it
has received from contemporary authority) can be invoked though
the same will not always be decisive of the question of construction
(Maxwell 12th ed.p.268). In Crawford on Statutory Construction
(1940 ed.) in para 219 (at pp. 393-395) it has been stated that
F administrative construction (i.e. contemporaneous construction
placed by administrative or executive officers charged with
executing a statute) generally should be clearly wrong before it is
overturned; such a construction, commonly referred to as practical
construction, although not controlling, is nevertheless entitled to
G considerable weight; it is highly persuasive. In Baleshwar

2
In Lexico (a collaboration between Oxford University Press and Dictionary.com), it is
stated that “the traditional distinction between the verbs enquire and inquire is
that enquire is to be used for general senses of ‘ask’, while inquire is reserved for uses
meaning ‘make a formal investigation’”. (see https://www.lexico.com/grammar/enquire-
H or-inquire).
TOFAN SINGH v. STATE OF TAMIL NADU 691
[R. F. NARIMAN, J.]

Bagarti v. Bhagirathi Dass [ILR 35 Cal 701 at 713] the principle, A
which was reiterated in Mathura Mohan Saha v. Ram Kumar
Saha [ILR 43 Cal 790] has been stated by Mookerjee, J., thus:
“It is a well settled principle of interpretation that courts in construing
a statute will give much weight to the interpretation put upon it, at
the time of its enactment and since, by those whose duty it has B
been to construe, execute and apply it...I do not suggest for a
moment that such interpretation has by any means a controlling
effect upon the courts; such interpretation may, if occasion arises,
have to be disregarded for cogent and persuasive reasons, and in
a clear case of error, a court would without hesitation refuse to
follow such construction.” C

61. The officer referred to in section 42 is given powers of entry,
search, seizure and arrest without warrant, with the safeguards that
have been pointed out hereinabove in this judgment.The first safeguard
is that such officer must have “reason to believe”, which as has been
noted, is different from mere “reason to suspect”.It is for this reason D
that such officer must make an enquiry in connection with the
contravention of the provisions of this Act, for otherwise, even without
such enquiry, mere suspicion of the commission of an offence would be
enough. It is in this enquiry that he has to call for “information” under
sub-clause (a), which “information” can be given by any person and
taken down in writing, as is provided in section 42(1). Further, the E
information given must be for the purpose of “satisfying” himself that
there has been a contravention of the provisions of this Act, which again
goes back to the expression “reason to believe” in section 42.This being
the case, it is a little difficult to accept Shri Lekhi’s argument that
“enquiry” in section 67 is the same as “investigation”, which is referred F
to in section 53.Section 53 states:
“53. Power to invest officers of certain departments with
powers of an officer-in-charge of a police station.—(1) The
Central Government, after consultation with the State Government,
may, by notification published in the Official Gazette, invest any G
officer of the department of central excise, narcotics, customs,
revenue intelligence or any other department of the Central
Government including para-military forces or armed forces or any
class of such officers with the powers of an officer-in-charge of
a police station for the investigation of the offences under this
Act. H
692 SUPREME COURT REPORTS [2020] 12 S.C.R.

A (2) The State Government may, by notification published in the
Official Gazette, invest any officer of the department of drugs
control, revenue or excise or any other department or any class
of such officers with the powers of an officer-in-charge of a police
station for the investigation of offences under this Act.”
B 62. “Investigation” is defined under the CrPC in section 2(h) as
follows:
“(h) “investigation” includes all the proceedings under this Code
for the collection of evidence conducted by a police officer or by
any person (other than a Magistrate) who is authorised by a
C Magistrate in this behalf;”
63. By virtue of section 2(xxix) of the NDPS Act, this definition
becomes applicable to the use of the expression “investigation” in section
53 of the NDPS Act. It is important to notice that it is an inclusive
definition, by which, “evidence” is collected by a police officer or a
D person authorised by the Magistrate.The “enquiry” that is made by a
section 42 officer is so that such officer may gather “information” to
satisfy himself that there is “reason to believe” that an offence has been
committed in the first place.
64. This becomes even clearer when section 52(3) of the NDPS
E Act is read. Under section 52(3), every person arrested and article seized
under sections 41 to 44 shall be forwarded without unnecessary delay
either to the officer-in-charge of the nearest police station, who must
then proceed to “investigate” the case given to him, or to the officer
empowered under section 53 of the NDPS Act, which officer then
“investigates” the case in order to find out whether an offence has been
F committed under the Act.It is clear, therefore, thatsection 67 is at an
antecedent stage to the “investigation”, which occurs after the concerned
officer under section 42 has “reason to believe”, upon information
gathered in an enquiry made in that behalf, that an offence has been
committed.
G 65. Equally, when we come to section 67(c) of the NDPS Act,
the expression used is “examine” any person acquainted with the facts
and circumstances of the case. The “examination” of such person is
again only for the purpose of gathering information so as to satisfy himself
that there is “reason to believe” that an offence has been committed.
This can, by no stretch of imagination, be equated to a “statement” under
H
TOFAN SINGH v. STATE OF TAMIL NADU 693
[R. F. NARIMAN, J.]

section 161 of the CrPC, as is argued by Shri Lekhi, relying upon Sahoo A
v. State of U.P. (1965) 3 SCR 86 (at page 88), which would include the
making of a confession, being a sub-species of “statement”.
66. The consequence of accepting Shri Lekhi’s argument flies in
the face of the fundamental rights contained in Articles 20(3) and 21, as
well as the scheme of the NDPS Act, together with the safeguards that B
have been set out by us hereinabove.First and foremost, even according
to Shri Lekhi, a police officer, properly so-called, may be authorised to
call for information etc. under section 67, as he is an officer referred to
in section 42(1).Yet, while “investigating” an offence under the NDPS
Act i.e. subsequent to the collection of information etc. under section
67, the same police officer will be bound by sections 160-164 of the C
CrPC, together with all the safeguards mentioned therein – firstly, that
the person examined shall be bound to answer truly all questions relating
to such case put to him, other than questions which would tend to
incriminate him; secondly, the police officer is to reduce this statement
into writing and maintain a separate and true record of this statement; D
thirdly, the statement made may be recorded by audio-video electronic
means to ensure its genuineness; and fourthly, a statement made by a
woman can only be made to a woman police officer or any woman
officer.Even after all these safeguards are met, no such statement can
be used at any inquiry or trial, except for the purpose of contradicting
such witness in cross-examination.In Tahsildar Singh v. State of E
U.P.,1959 Supp (2) SCR 875, Subba Rao J., speaking for four out of six
learned Judges of this Court, had occasion to refer to the history of
section 162 of the CrPC. After setting out this history in some detail, the
learned Judge held:
“It is, therefore, seen that the object of the legislature throughout F
has been to exclude the statement of a witness made before the
police during the investigation from being made use of at the trial
for any purpose, and the amendments made from time to time
were only intended to make clear the said object and to dispel the
cloud cast on such intention. The Act of 1898 for the first time G
introduced an exception enabling the said statement reduced to
writing to be used for impeaching the credit of the witness in the
manner provided by the Evidence Act. As the phraseology of the
exception lent scope to defeat the purpose of the legislature, by
the Amendment Act of 1923, the section was redrafted defining
the limits of the exception with precision so as to confine it only to H
694 SUPREME COURT REPORTS [2020] 12 S.C.R.

A contradict the witness in the manner provided under Section 145
of the Evidence Act. If one could guess the intention of the
legislature in framing the section in the manner it did in 1923, it
would be apparent that it was to protect the accused against the
user of the statements of witnesses made before the police during
investigation at the trial presumably on the assumption that the
B
said statements were not made under circumstances inspiring
confidence. Both the section and the proviso intended to serve
primarily the same purpose i.e., the interest of the accused.
(at pages 889 – 890)
C xxx xxxxxx
The object of the main section as the history of its legislation
shows and the decided cases indicate is to impose a general bar
against the use of statement made before the police and the
enacting clause in clear terms says that no statement made by
D any person to a police officer or any record thereof, or any part of
such statement or record, be used for any purpose. The words
are clear and unambiguous. The proviso engrafts an exception on
the general prohibition and that is, the said statement in writing
may be used to contradict a witness in the manner provided by
Section 145 of the Evidence Act. We have already noticed from
E the history of the section that the enacting clause was mainly
intended to protect the interests of accused. At the state of
investigation, statements of witnesses are taken in a haphazard
manner. The police officer in the course of his investigation finds
himself more often in the midst of an excited crowd and babel of
F voices raised all round. In such an atmosphere, unlike that in a
court of law, he is expected to hear the statements of witnesses
and record separately the statement of each one of them. Generally
he records only a summary of the laments which appear to him to
be relevant. These statements are, therefore only a summary of
what a witness says and very often perfunctory. Indeed, in view
G of the aforesaid facts, there is a statutory prohibition against police
officers taking the signature of the person making the statement,
indicating thereby that the statement is not intended to be binding
on the witness or an assurance by him that it is a correct statement.
At the same time, it being the earliest record of the statement of
H a witness soon after the incident, any contradiction found therein
TOFAN SINGH v. STATE OF TAMIL NADU 695
[R. F. NARIMAN, J.]

would be of immense help to an accused to discredit the testimony A
of a witness making the statement. The section was, therefore,
conceived in an attempt to find a happy via media, namely, while
it enacts an absolute bar against the statement made before a
police officer being used for any purpose whatsoever, it enables
the accused to rely upon it for a limited purpose of contradicting a
B
witness in the manner provided by Section 145 of the Evidence
Act by drawing his attention to parts of the statement intended
for contradiction. It cannot be used for corroboration of a
prosecution or a defence witness or even a court witness. Nor
can it be used for contradicting a defence or a court witness.
Shortly stated, there is a general bar against its use subject to a C
limited exception in the interest of the accused, and the exception
cannot obviously be used to cross the bar.”
(at pages 894 – 895)
67. Under section 163(1) of the CrPC, no inducement, threat or
promise, as has been mentioned in section 24 of the Evidence Act, can D
be made to extort such statement from a person; and finally, if a
confession is to be recorded, it can only be recorded in the manner laid
down in section 164 i.e. before a Magistrate, which statement is also to
be recorded by audio-video electronic means in the presence of the
Advocate of the person accused of an offence. This confession can E
only be recorded after the Magistrate explains to the person making it
that he is not bound to make a confession and that, if he does so, it may
be used as evidence against him – see section 164(2) of the CrPC. The
Magistrate is then to make a memorandum at the foot of the record that
he has, in fact, warned the person that he is not bound to make such
confession, and that it may be used as evidence against him – see section F
164(4) of the CrPC. Most importantly, the Magistrate is empowered to
administer oath to the person whose statement is so recorded – see
section 164(5) of the CrPC.
68. It would be remarkable that if a police officer, properly so-
called, were to “investigate” an offence under the NDPS Act, all the G
safeguards contained in sections 161 to 164 of the CrPC would be
available to the accused, but that if the same police officer or other
designated officer under section 42 were to record confessional
statements under section67 of the NDPS Act, these safeguards would
be thrown to the winds, as was admitted by Shri Lekhi in the course of H
696 SUPREME COURT REPORTS [2020] 12 S.C.R.

A his arguments. Even if any such anomaly were to arise on a strained
construction of section 67 as contended for by Shri Lekhi, the alternative
construction suggested by the Appellants, being in consonance with
fundamental rights, alone would prevail, as section 67 would then have
to be “read down” so as to conform to fundamental rights.
B 69. Take, for example, an investigation conducted by the regular
police force of a State qua a person trafficking in ganja. If the same
person were to be apprehended with ganja on a subsequent occasion,
this time not by the State police force but by other officers for the same
or similar offence, the safeguards contained in sections 161-164 of the
CrPC would apply insofar as the first incident is concerned, but would
C not apply to the subsequent incident. This is because the second time,
the investigation was not done by the State police force, but by other
officers. The fact situation mentioned in the aforesaid example would
demonstrate manifest arbitrariness in the working of the statute, leading
to a situation where, for the first transaction, safeguards available under
D the CrPC come into play because it was investigated by the local State
police, as opposed to officers other than the local police who investigated
the second transaction.
70. Take another example. If X & Y are part of a drug syndicate,
and X is apprehended in the State of Punjab by the local State police
E with a certain quantity of ganja, and Y is apprehended in the State of
Maharashtra by officers other than the State police, again with a certain
quantity of ganja which comes from the same source, the investigation
by the State police in Punjab would be subject to safeguards contained
in the CrPC, but the investigation into the ganja carried by Y to
Maharashtra would be investigated without any such safeguards, owing
F to the fact that an officer other than the local police investigated into the
offence. These anomalies are real and not imaginary, and if a statute is
so readas to give rise to such anomalies, it would necessarily have to be
struck down under Article 14 of the Constitution as being discriminatory
and manifestly arbitrary.
G 71. Further, the provisions of section 53A of the NDPS Act militate
strongly against Shri Lekhi’s argument. Section 53A states as follows:
“53A. Relevancy of statements under certain
circumstances.—(1) A statement made and signed by a person
before any officer empowered under section 53 for the investigation
H of offences, during the course of any inquiry or proceedings by
TOFAN SINGH v. STATE OF TAMIL NADU 697
[R. F. NARIMAN, J.]

such officer, shall be relevant for the purpose of proving, in any A
prosecution for an offence under this Act, the truth of the facts
which it contains,—
(a) when the person who made the statement is dead or cannot
be found, or is incapable of giving evidence, or is kept out of the
way by the adverse party, or whose presence cannot be obtained B
without an amount of delay or expense which, under the
circumstances of the case, the court considers unreasonable; or
(b) when the person who made the statement is examined as a
witness in the case before the court and the court is of the opinion
that, having regard to the circumstances of the case, the statement C
should be admitted in evidence in the interest of justice.
(2) The provisions of sub-section (1) shall, so far as may be, apply
in relation to any proceedings under this Act or the rules or orders
made thereunder, other than a proceeding before a court, as they
apply in relation to a proceeding before a court.” D
72. If Shri Lekhi’s argument were correct, that a confessional
statement made under section 67is sufficient as substantive evidence to
convict an accused under the NDPS Act, section 53A would be rendered
otiose. Sections 53 and 53A of the NDPS Act, when read together,would
make it clear thatsection 53A is in the nature of an exception to sections E
161, 162 and 172 of the CrPC. This is for the reason that section 53(1),
when it invests certain officers or classes of officers with the power of
an officer in charge of a police station for investigation of offences under
the NDPS Act, refers to Chapter XII of the CrPC, of which sections
161, 162 and 172 are a part.First and foremost, under section 162(1) of
the CrPC, statements that are made in the course of investigation are F
not required to be signed by the person making them – under section
53A they can be signed by the person before an officer empowered
under section 53. Secondly, it is only in two circumstances [under section
53A(1)(a) and (b)] that sucha statement is made relevant for the purpose
of proving an offence against the accused: it is only if the person who G
made the statement is dead, cannot be found, is incapable of giving
evidence; or is kept out of the way by the adverse party, or whose
presence cannot be obtained without delay or expense which the court
considers unreasonable, that such statement becomes relevant. Otherwise,
if the person who made such a statement is examined as a witness, and
the court thinks that in the interest of justice such statement should be H
698 SUPREME COURT REPORTS [2020] 12 S.C.R.

A made relevant and does so, then again, such statement may become
relevant.None of this would be necessary if Shri Lekhi’s argument were
right, that a confessional statement made under section 67 – not being
bound by any of these constraints – would be sufficient to convict the
accused.
B 73. Shri Lekhi then relied strongly upon the recent Constitution
Bench judgment inMukesh Singh (supra).This judgment concerned
itself with the correctness of the decision in Mohan Lal v. State of
Punjab, (2018) 17 SCC 627, which had taken the view that in case the
investigation is conducted by the very police officer who is himself the
complainant, the trial becomes vitiated as a matter of law, and the accused
C is entitled to acquittal.In deciding this question, the Constitution Bench
of this Court referred to various earlier judgments, in particular, the
judgment inState v. V. Jayapaul (2004) 5 SCC 223. After setting out
the relevant provisions of the CrPC, the Court concluded:
“80…Thus, under the scheme of Cr.P.C., it cannot be said that
D there is a bar to a police officer receiving information for
commission of a cognizable offence, recording he same and then
investigating it. On the contrary, Sections 154, 156 and 157 permit
the officer in charge of a police station to reduce the information
of commission of a cognizable offence in writing and thereafter
to investigate the same.”
E 74. The Court then set out the provisions of the NDPS Act and
concluded:
“89. Section 52 of the NDPS Act mandates that any officer
arresting a person under Sections 41, 42, 43 or 44 to inform the
person arrested of the grounds for such arrest. Sub-section 2 of
F Section 52 further provides that every person arrested and article
seized under warrant issued under sub-section 1 of Section 41
shall be forwarded without unnecessary delay to the Magistrate
by whom the warrant was issued. As per sub-section 3 of Section
52, every person arrested and article seized under sub-section 2
G of Section 41, 42, 43, or 44 shall be forwarded without unnecessary
delay to the officer in charge of the nearest police station, or the
officer empowered under section 53.
90. That thereafter the investigation is to be conducted by the
officer in charge of a police station.”
H (emphasis supplied)
TOFAN SINGH v. STATE OF TAMIL NADU 699
[R. F. NARIMAN, J.]

75. The Court then went on to state: A
“93. Section 53 does not speak that all those officers to be
authorised to exercise the powers of an officer in charge of a
police station for the investigation of the offences under the NDPS
Act shall be other than those officers authorised under Sections
41, 42, 43, and 44 of the NDPS Act. It appears that the legislature B
in its wisdom has never thought that the officers authorised to
exercise the powers under Sections 41, 42, 43 and 44 cannot be
the officer in charge of a police station for the investigation of the
offences under the NDPS Act.
94. Investigation includes even search and seizure. As the C
investigation is to be carried out by the officer in charge of a
police station and none other and therefore purposely Section 53
authorises the Central Government or the State Government, as
the case may be, invest any officer of the department of drugs
control, revenue or excise or any other department or any class
of such officers with the powers of an officer in charge of a D
police station for the investigation of offences under the NDPS
Act.
95. Section 42 confers power of entry, search, seizure and arrest
without warrant or authorisation to any such officer as mentioned
in Section 42 including any such officer of the revenue, drugs E
control, excise, police or any other department of a State
Government or the Central Government, as the case may be, and
as observed hereinabove, Section 53 authorises the Central
Government to invest any officer of the department of central
excise, narcotics, customs, revenue intelligence or any other F
department of the Central Government….or any class of such
officers with the powers of an officer in charge of a police station
for the investigation. Similar powers are with the State
Government. The only change in Sections 42 and 53 is that in
Section 42 the word “police” is there, however in Section 53 the
word “police” is not there. There is an obvious reason as for G
police such requirement is not warranted as he always can be the
officer in charge of a police station as per the definition of an
“officer in charge of a police station” as defined under the Cr.P.C.”
76. On the basis of this judgment, Shri Lekhi argued that
“investigation” under the NDPS Act includes search and seizure which H
700 SUPREME COURT REPORTS [2020] 12 S.C.R.

A is to be done by a section 42 officer and would, therefore, begin from
that stage.
77. In this connection, it is important to advert first to the decision
of this Court in H.N. Rishbud and Inder Singh v. State of Delhi
(1955) 1 SCR 1150. This judgment explains in great detail as to what
B exactly the scope of “investigation” is under the CrPC. It states:
“In order to ascertain the scope of and the reason for requiring
such investigation to be conducted by an officer of high rank
(except when otherwise permitted by a Magistrate), it is useful to
consider what “investigation” under the Code comprises.
C Investigation usually starts on information relating to the commission
of an offence given to an officer in charge of a police station and
recorded under Section 154 of the Code. If from information so
received or otherwise, the officer in charge of the police station
has reason to suspect the commission of an offence, he or some
other subordinate officer deputed by him, has to proceed to the
D spot to investigate the facts and circumstances of the case and if
necessary to take measures for the discovery and arrest of the
offender. Thus investigation primarily consists in the ascertainment
of the facts and circumstances of the case. By definition, it includes
“all the proceedings under the Code for the collection of evidence
E conducted by a police officer”. For the above purposes, the
investigating officer is given the power to require before himself
the attendance of any person appearing to be acquainted with the
circumstances of the case. He has also the authority to examine
such person orally either by himself or by a duly authorised deputy.
The officer examining any person in the course of investigation
F may reduce his statement into writing and such writing is available,
in the trial that may follow, for use in the manner provided in this
behalf in Section 162. Under Section 155 the officer in charge of
a police station has the power of making a search in any place for
the seizure of anything believed to be necessary for the purpose
G of the investigation.The search has to be conducted by such officer
in person. A subordinate officer may be deputed by him for the
purpose only for reasons to be recorded in writing if he is unable
to conduct the search in person and there is no other competent
officer available.The investigating officer has also the power to
arrest the person or persons suspected of the commission of the
H offence under Section 54 of the Code. A police officer making an
TOFAN SINGH v. STATE OF TAMIL NADU 701
[R. F. NARIMAN, J.]

investigation is enjoined to enter his proceedings in a diary from A
day-to-day. Where such investigation cannot be completed within
the period of 24 hours and the accused is in custody he is enjoined
also to send a copy of the entries in the diary to the Magistrate
concerned. It is important to notice that where the investigation is
conducted not by the officer in charge of the police station but by
B
a subordinate officer (by virtue of one or other of the provisions
enabling him to depute such subordinate officer for any of the
steps in the investigation) such subordinate officer is to report the
result of the investigation to the officer in charge of the police
station. If, upon the completion of the investigation it appears to
the officer in charge of the police station that there is no sufficient C
evidence or reasonable ground, he may decide to release the
suspected accused, if in custody, on his executing a bond. If,
however, it appears to him that there is sufficient evidence or
reasonable ground, to place the accused on trial, he is to take the
necessary steps therefore under Section 170 of the Code. In either
D
case, on the completion of the investigation he has to submit a
report to the Magistrate under Section 173 of the Code in the
prescribed form furnishing various details. Thus, under the Code
investigation consists generally of the following steps: (1)
Proceeding to the spot, (2) Ascertainment of the facts and
circumstances of the case, (3) Discovery and arrest of the E
suspected offender, (4) Collection of evidence relating to the
commission of the offence which may consist of (a) the
examination of various persons (including the accused) and the
reduction of their statements into writing, if the officer thinks fit,
(b) the search of places or seizure of things considered necessary
F
for the investigation and to be produced at the trial, and (5)
Formation of the opinion as to whether on the material collected
there is a case to place the accused before a Magistrate for trial
and if so taking the necessary steps for the same by the filing of a
charge-sheet under Section 173. The scheme of the Code also
shows that while it is permissible for an officer in charge of a G
police station to depute some subordinate officer to conduct some
of these steps in the investigation, the responsibility for every one
of these steps is that of the person in the situation of the officer in
charge of the police station, it having been clearly provided in
Section 168 that when a subordinate officer makes an investigation
he should report the result to the officer in charge of the police H
702 SUPREME COURT REPORTS [2020] 12 S.C.R.

A station. It is also clear that the final step in the investigation, viz.
the formation of the opinion as to whether or not there is a case to
place the accused on trial is to be that of the officer in charge of
the police station.There is no provision permitting delegation thereof
but only a provision entitling superior officers to supervise or
participate under Section 551.”
B
(at pages 1156-1158)
This statement of the law was reiterated in State of Madhya
Pradesh v. Mubarak Ali (1959) Supp. 2 SCR 201 at 211, 212.
78. It is important to remember that an officer-in-charge of a
C police station, when he investigates an offence, begins by gathering
information, in the course of which he may collect evidence relating to
the commission of the offence, which would include search and seizure
of things in the course of investigation, to be produced at the trial. Under
the scheme of the NDPS Act, it is possible that the same officer who is
D authorised under section 42 is also authorised undersection 53.In point
of fact, Notification S.O. 822(E) issued by the Ministry of Finance
(Department of Revenue), dated 14.11.1985, empowered the following
officers under section 42 and 67 of the NDPS Act:
“S.O. 822(E).-In exercise of the powers conferred by sub-section
E (1) of section 42 and section 67 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (61 of 1985), the Central
Government hereby empowers the officers of and above the rank
of Sub-Inspector in the department of Narcotics and of and above
the rank of Inspector in the departments of Central Excise, Customs
and Revenue Intelligence and in Central Economic Intelligence
F Bureau and Narcotics Control Bureau to exercise of the powers
and perform the duties specified in section 42 within the area of
their respective jurisdiction and also authorises the said officers
to exercise the powers conferred upon them under section 67.”
79. Notification S.O.823(E), also dated 14.11.1985, the Ministry
G of Finance (Department of Revenue), empowered the following officers
under section 53(1) of the NDPS Act:
“S.O. 823(E).-In exercise of the powers conferred by sub-section
(1) of section 53 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (61 of 1985), the Central Government, after
H consultation with all the State Governments hereby invests the
TOFAN SINGH v. STATE OF TAMIL NADU 703
[R. F. NARIMAN, J.]

officers of and above the rank of Inspector in the Departments of A
Central Excise, Narcotics, Customs and Revenue Intelligence and
in Central Economic Intelligence Bureau and Narcotics Control
Bureau with the powers specified in sub-section (1) of that
section.”
80. These notifications indicate that officers of and above the B
rank of Inspector in the Departments of Central Excise, Customs,
Revenue Intelligence, Central Economic Intelligence Bureau and
Narcotics Control Bureau were authorised to act under both sections 42
and 53. These notifications dated 14.11.1985 were superseded by the
following notifications issued by the Ministry of Finance (Department of
Revenue) on 30.10.2019: C

“S.O. 3901(E).—In exercise of the powers conferred by sub-
section (1) of section 42 and section 67 of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (61 of 1985), and in
supersession of the notification of the Government of India in the
Ministry of Finance, Department of Revenue number S.O. 822(E), D
dated the 14th November, 1985, published in the Gazette of India,
Extraordinary, Part II, Section 3, Sub-section (ii), except as
respects things done or omitted to be done before such
supersession the Central Government hereby empowers the
officers of and above the rank of sub-inspector in Central Bureau E
of Narcotics and Junior Intelligence Officer in Narcotics Control
Bureau and of and above the rank of inspectors in the Central
Board of Indirect Taxes and Customs, Directorate of Revenue
Intelligence, Central Economic Intelligence Bureau to exercise
the powers and perform the duties specified in section 42 within
the area of their respective jurisdiction and also authorise the said F
officers to exercise the powers conferred upon them under section
67.”
“S.O. 3899(E).—In exercise of the powers conferred by sub-
section (1) of section 53 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (61 of 1985) and in supersession of the G
notification of the Government of India in the Ministry of Finance,
Department of Revenue number S.O. 823(E), dated the 14th
November, 1985, published in the Gazette of India, Extraordinary,
Part II, Section 3, Sub-section (ii), except as respects things done
or omitted to be done before such supersession, the Central H
704 SUPREME COURT REPORTS [2020] 12 S.C.R.

A Government after consultation with all the State Governments
hereby invests the officers of and above the rank of inspectors in
the Central Board of Indirect Taxes and Customs, Central Bureau
of Narcotics, Directorate of Revenue Intelligence, Central
Economic Intelligence Bureau and of and above the rank of Junior
Intelligence Officer in Narcotics Control Bureau with the powers
B
specified in sub-section (1) of that section.”
81. Thus, even the new notifications dated 30.10.2019 indicate
that the powers under sections 42 and 53 of the NDPS Act are invested
in officers of and above the rank of inspectors in the Central Board of
Indirect Taxes and Customs, Central Bureau of Narcotics, Directorate
C of Revenue Intelligence, Central Economic Intelligence Bureau and of
and above the rank of Junior Intelligence Officer in Narcotics Control
Bureau.
82. The observations of the Constitution Bench in Mukesh Singh
(supra) are, therefore, to the effect that the very person who initiates
D the detection of crime, so to speak, can also investigate into the offence
– there being no bar under the NDPS Act for doing so. This is a far cry
from saying that the scheme of the NDPS Act leads to the conclusion
that a section 67 confessional statement, being in the course of
investigation, would be sufficient to convict a person accused of an
E offence.
83. As has been pointed out hereinabove, there could be a situation
in which a section 42 officer, as designated, is different from a section
53 officer,in which case, it would be necessary for the section 42 officer
to first have “reason to believe” that an offence has been committed, for
F the purpose of which he gathers information, which is then presented
not only to his superior officer under section 42(2), but also presented to
either an officer-in-charge of a police station, or to an officer designated
under section 53 – see section 52(3). This was clearly recognised by the
Constitution Bench in Mukesh Singh (supra) when it spoke of the
requirements under section 52(2) and (3) being met, and “investigation”
G being conducted thereafter by the officer in charge of a police station.
84. Take a hypothetical case where an officer is designated under
section 42, but there is no designation of any officer under section 53 to
conduct investigation.In such a case, the section 42 officer would not
conduct any investigation at all – he would only gather facts which give
H him “reason to believe” that an offence has been committed, in pursuance
TOFAN SINGH v. STATE OF TAMIL NADU 705
[R. F. NARIMAN, J.]

of which he may use the powers given to him under section 42. After A
this, for “investigation” into the offence under the NDPS Act, the only
route in the absence of a designated officer under section 53, would be
for him to present the information gathered to an officer-in-charge of a
police station, who would then “investigate” the offence under the NDPS
Act.
B
85. Also, we must bear in mind the fact that the Constitution
Bench’s focus was on a completely different point, namely, whether the
complainant and the investigator of an offence could be the same. From
the point of view of this question, section 53A of the NDPS Act is not
relevant and has, therefore, not been referred to by the Constitution
Bench. As has been pointed out by us hereinabove, in order to determine C
the questions posed before us, section 53A becomes extremely important,
and would, as has been pointed out by us, be rendered otiose if Shri
Lekhi’s submission, that a statement under section 67 is sufficient to
convict an accused of an offence under the Act, is correct. For all these
reasons, we do not accede either to Shri Puneet Jain’s argument to refer D
Mukesh Singh (supra) to a larger Bench for reconsideration, or to Shri
Lekhi’s argument based on the same judgment, as the point involved in
Mukesh Singh (supra) was completely different from the one before
us.
WHETHER AN OFFICER DESIGNATED UNDER E
SECTION 53 OF THE NDPS ACT CAN BE SAID TO BE A
POLICE OFFICER
86. We now come to the question as to whether the officer
designated under section 53 of the NDPS Act can be said to be a “police
officer” so as to attract the bar contained in section 25 of the Evidence F
Act.
87. The case law on the subject of who would constitute a”police
officer” for the purpose of section 25 of the Evidence Act begins with
the judgment of this Court in Barkat Ram (supra).In this judgment, by a
2:1 majority, this Court held that a Customs Officer under the Land G
Customs Act, 1924 is not a “police officer” within the meaning of section
25 of the Evidence Act. The majority judgment of Raghubar Dayal, J.
first set out section 9 of the Land Customs Act as follows:
“”The provisions of the Sea Customs Act, 1878 (VIII of 1878),
which are specified in the Schedule, together with all notifications,
H
706 SUPREME COURT REPORTS [2020] 12 S.C.R.

A orders, rules or forms issued, made or prescribed, thereunder, shall,
so far as they are applicable, apply for the purpose of the levy of
duties of land customs under this Act in like manner as they apply
for the purpose of the levy of duties of customs on goods imported
or exported by sea.”
B Among the sections of the Sea Customs Act made applicable by
sub-s. (1) of s. 9 of the Land Customs Act, are included all the
sections in Chapters XVI and XVII of the Sea Customs Act viz.
ss.167 to 193.”
(at page 342)
C 88. The Court then examined the Police Act, 1861, and found:
“The Police Act, 1861 (Act 5 of 1861), is described as an Act for
the regulation of police, and is thus an Act for the regulation of
that group of officers who come within the word ‘police’ whatever
meaning be given to that word. The preamble of the Act further
D says: ‘whereas it is expedient to re-organise the police and to
make it a more efficient instrument for the prevention and detection
of crime, it is enacted as follows’. This indicates that the police is
the instrument for the prevention and detection of crime which
can be said to be the main object and purpose of having the police.
E Sections 23 and 25 lay down the duties of the police officers and
Section 20 deals with the authority they can exercise. They can
exercise such authority as is provided for a police officer under
the Police Act and any Act for regulating criminal procedure. The
authority given to police officers must naturally be to enable them
to discharge their duties efficiently. Of the various duties mentioned
F in s. 23, the more important duties are to collect and communicate
intelligence affecting the public peace, to prevent the commission
of offences and public nuisances and to detect and bring offenders
to justice and to apprehend all persons whom the police officer is
legally authorised to apprehend. It is clear, therefore, in view of
G the nature of the duties imposed on the police officers, the nature
of the authority conferred and the purpose of the Police Act, that
the powers which the police officers enjoy are powers for the
effective prevention and detection of crime in order to maintain
law and order.
The powers of Customs Officers are really not for such purpose.
H
Their powers are for the purpose of checking the smuggling of
TOFAN SINGH v. STATE OF TAMIL NADU 707
[R. F. NARIMAN, J.]

goods and the due realisation of customs duties and to determine A
the action to be taken in the interests of the revenues of the country
by way of confiscation of goods on which no duty had been paid
and by imposing penalties and fines.
Reference to s.9(1) of the Land Customs Act may be usefully
made at this stage. It is according to the provisions of this sub- B
section that the provisions of the Sea Customs Act and the orders,
Rules etc. prescribed thereunder, apply for the purpose of levy of
duties of land customs under the Land Customs Act in like manner
as they apply for the purpose of levy of duties of customs on
goods imported or exported by sea. This makes it clear that the
provisions conferring various powers on the Sea Customs Officers C
are for the purpose of levying and realisation of duties of customs
on goods and that those powers are conferred on the Land
Customs Officers also for the same purpose. Apart from such an
expression in Section 9(1) of the Land Customs Act, there are
good reasons in support of the view that the powers conferred on D
the Customs Officers are different in character from those of the
police officers for the detection and prevention of crime and that
the powers conferred on them are merely for the purpose of
ensuring that dutiable goods do not enter the country without
payment of duty and that articles whose entry is prohibited are
not brought in. It is with respect to the detecting and preventing of E
the smuggling of goods and preventing loss to the Central
Revenues that Customs Officers have been given the power to
search the property and person and to detain them and to summon
persons to give evidence in an enquiry with respect to the smuggling
of goods. F
The preamble of the Sea Customs Act says: “Whereas it is
expedient to consolidate and amend the law relating to the levy of
Sea Customs-duties”. Practically, all the provisions of the Act are
enacted to achieve this object.”
(pages 343-344) G
“The Customs Officer, therefore, is not primarily concerned with
the detection and punishment of crime committed by a person,
but is mainly interested in the detection and prevention of smuggling
of goods and safeguarding the recovery of customs duties. He is
H
708 SUPREME COURT REPORTS [2020] 12 S.C.R.

A more concerned with the goods and customs duty, than with the
offender.”
(page 345)
89. In an important passage, the Court then concluded that since
the expression “police officer” is not defined, it cannot be construed in a
B narrow way, but must be construed in a “wide and popular sense”, as
follows:
“There seems to be no dispute that a person who is a member of
the police force is a police officer. A person is a member of the
police force when he holds his office under any of the Acts dealing
C with the police. A person may be a member of the police in any
other country. Officers of the police in the erstwhile Indian States
and an officer of the police of a foreign country have been held in
certain decided cases to be police officers within the meaning of
Section 25 of the Evidence Act. There is no denying that these
D persons are police officers and are covered by that expression in
Section 25. That expression is not restricted to the police-officers
of the police forces enrolled under the Police Act of 1861. The
word ‘police is defined in S.1 and is said to include all persons
who shall be enrolled under the Act. No doubt this definition is not
restrictive, as it uses the expression ‘includes’, indicating thereby
E that persons other than those enrolled under that Act can also be
covered by the word “police”.
Sections 17 and 18 of the Police Act provide for the appointment
of special police officers who are not enrolled under the Act but
are appointed for special occasions and have the same powers,
F privileges and protection and are liable to perform the same duties
as the ordinary officers of the police.
Section 21 also speaks of officers who are not enrolled as police
officers and in such categories mentions hereditary or other village
police officers.
G
The words ‘police officer’ are therefore not to be construed in a
narrow way, but have to be construed in a wide and popular sense,
as was remarked in R. v. Hurribole [ILR 1 Cal 207] where a
Deputy Commissioner of police who was actually a police officer
and was merely invested with certain Magisterial powers was
H
TOFAN SINGH v. STATE OF TAMIL NADU 709
[R. F. NARIMAN, J.]

rightly held to be a police officer within the meaning of that A
expression in Section 25 of the Evidence Act.”
(at pages 347-348)
90. The Court then held, in a significant passage, that a confession
made to any member of the police – of whatever rank –is interdicted by
section 25 of the Evidence Act, as follows: B

“The police officer referred to in Section 25 of the Evidence Act,
need not be the officer investigating into that particular offence of
which a person is subsequently accused. A confession made to
him need not have been made when he was actually discharging
any police duty. Confession made to any member of the police, of C
whatever rank and at whatever time, is inadmissible in evidence
in view of Section 25.”
(at page 349)
91. The Court then found: D
“The powers of search etc., conferred on the former are, as was
observed in Thomas Dana’s case [(1959) Supp (1) SCR 274, 289]
of a limited character and have a limited object of safeguarding
the revenues of the State.
It is also to be noticed that the Sea Customs Act itself refers to E
police officer in contradistinction to the Customs Officer. Section
180 empowers a police officer to seize articles liable to confiscation
under the Act, on suspicion that they had been stolen. Section 184
provides that the officer adjudging confiscation shall take and hold
possession of the thing confiscated and every officer of police, on
F
request of such officer, shall assist him in taking and holding such
possession. This leaves no room for doubt that a Customs Officer
is not an officer of the Police.
It is well-settled that the Customs Officer, when they act under
the Sea Customs Act to prevent the smuggling of goods by
imposing confiscation and penalties, act judicially: Leo Roy G
Frey v. Superintendent District Jail, Amritsar [1958 SCR
822]; Shewpujanrai Indrasanrai Ltd. v. Collector of
Customs [1959 SCR 821]. Any enquiry under Section 171-A is
deemed to be a judicial proceeding within the meaning of Sections
193 and 228 IPC, in view of its sub-section (4). It is under the H
710 SUPREME COURT REPORTS [2020] 12 S.C.R.

A authority given by this section that the Customs Officers can take
evidence and record statements. If the statement which is recorded
by a Customs Officer in the exercise of his powers under this
section be an admission of guilt, it will be too much to say that that
statement is a confession to a police officer, as a police officer
never acts judicially and no proceeding before a police officer is
B
deemed, under any provision so far as we are aware, to be a
judicial proceeding for the purpose of Sections 193 and 228 IPC,
or for any purpose. It is still less possible to imagine that the
legislature would contemplate such a person, whose proceedings
are judicial for a certain purpose, to be a person whose record of
C statements made to him could be suspect if such statement be of
a confessional nature.”
(at page 350-351)
92. The majority concluded:
D “We make it clear, however, that we do not express any opinion
on the question whether officers of departments other than the
police, on whom the powers of an Officer-in-charge of a Police
Station under Chapter XIV of the Code of Criminal Procedure,
have been conferred, are police officers or not for the purpose of
Section 25 of the Evidence Act, as the learned counsel for the
E appellant did not question the correctness of this view for the
purpose of this appeal.”
(at page 352)
93. Subba Rao, J. dissented. He made a neat division of “police
F officer” into three categories as follows:
“It may mean any one of the following categories of officers: (i)
a police officer who is a member of the police force constituted
under the Police Act; (ii) though not a member of the police force
constituted under the Police Act, an officer who by statutory fiction
is deemed to be a police officer in charge of a police station under
G
the Code of Criminal Procedure; and (iii) an officer on whom a
statute confers powers and imposes duties of a police officer under
the Code of Criminal Procedure, without describing him as a police
officer or equating him by fiction to such an officer.”
(at page 355)
H
TOFAN SINGH v. STATE OF TAMIL NADU 711
[R. F. NARIMAN, J.]

94. He then referred to the “high purpose” of section 25 as follows: A
“It is, therefore, clear that Section 25 of the Evidence Act was
enacted to subserve a high purpose and that is to prevent the
police from obtaining confessions by force, torture or inducement.
The salutary principle underlying the section would apply equally
to other officers, by whatever designation they may be known, B
who have the power and duty to detect and investigate into crimes
and is for that purpose in a position to extract confessions from
the accused.”
(at page 357)
“It is not the garb under which they function that matters, but the C
nature of the power they exercise or the character of the function
they perform is decisive. The question, therefore, in each case is,
does the officer under a particular Act exercise the powers and
discharge the duties of prevention and detection of crime? If he
does, he will be a police officer.” D
(at page 358)
95. After referring to various High Court judgments which
contained the “broad view” – i.e. Bombay, Calcutta and Madras, which
would include all three classes of police officers referred to, as against
the “narrow view” of the Patna High Court, where only a person who is E
designated as a police officer under the Police Act, 1861 was accepted
to be a police officer under section 25 of the Evidence Act, Subba Rao,
J., then finally concluded that, given the functional test and the object of
section 25, a customs officer would be a “police officer” properly so
called. F
96. (1) The majority view in this judgment first emphasised the
point that the Land Customs Act, 1924 and the Sea Customs Act, 1878
were statutes primarily concerned with the levy of duties of customs,
and ancillary to this duty, officers designated in those Acts are given
certain powers to check smuggling of goods for due realisation of customs
G
duties.In a significant sentence, the Court, therefore, stated that a customs
officer is more concerned with the goods and customs duty than with
the offender. (2) The persons who are not enrolled as “police” under the
Police Act, 1861, would be included as “police” under the inclusive
definition contained in that Act, leading to the acceptance of the “broad
view” and rejection of the “narrow view” of the meaning of “police H
712 SUPREME COURT REPORTS [2020] 12 S.C.R.

A officer”.(3)The protection of section 25 of the Evidence Act is very
wide, and applies to a confession made to any member of the police
whatever his rank, and at whatever time it is made, whether before or
after being accused of an offence. (4)That the powers of search, seizure,
etc. that are conferred under the Land Customs Act are of a limited
character, for the limited object of safeguarding the revenues of the
B
State.(5)That section 171A of the Sea Customs Act, 1878 which
empowers the customs officer to summon a person to give evidence, or
produce a document in an enquiry which he makes, is a judicial enquiry
– as a result, a customs officer can never be said to be a police officer
as a police officer never acts judicially. (6)The precise question with
C which we are concerned in this case, namely, whether officers of
departments other than the police on whom the powers of an officer-in-
charge of a police station under Chapter XIV of the CrPC have been
conferred are police officers within the meaning of section 25 of the
Evidence Act, was expressly left open.
D 97. In Raja Ram Jaiswal (supra), this time a majority of 2:1 of
this Court held that a confession made to an Excise Inspector under the
Bihar and Orissa Excise Act of 1915, would be a confession made to a
police officer for the purpose of section 25 of the Evidence Act. The
majority judgment of Mudholkar, J. referred to Barkat Ram(supra)and
held:
E
“It has, however, been held in a large number of cases, including
the one decided by this court, The State of Punjab v. Barkat
Ram [(1962) 3 SCR p. 338] that the words “Police Officer” to be
found in Section 25 of the Evidence Act are not to be construed in
a narrow way but have to be construed in a wide and popular
F sense. Those words, according to this Court, are however not to
be construed in so wide a sense as to include persons on whom
only some of the powers exercised by the police are conferred.”
(page 761)

G 98. Barkat Ram (supra) was again referred to, stating that the
question which was before the Court was expressly left open by the
majority in that case, and it is precisely this question that arose in this
case – see page 762. The Court then held:
“It is precisely this question which falls for consideration in the
present appeal. For, under Section 78(3) of the Bihar and Orissa
H
TOFAN SINGH v. STATE OF TAMIL NADU 713
[R. F. NARIMAN, J.]

Excise Act, 1915 (2 of 1915) an Excise Officer empowered under A
Section 77, sub-section (2) of that Act shall, for the purpose of
Section 156 of the Code of Criminal Procedure be deemed to be
an officer in charge of a police station with respect to the area to
which his appointment as an Excise Officer extends. Sub-section
(1) of Section 77 empowers the Collector of Excise to investigate
B
without the order of a Magistrate any offence punishable under
the Excise Act committed within the limits of his jurisdiction. Sub-
section (2) of that section provides that any other Excise Officer
specially empowered behalf in this by the State Government in
respect of all or any specified class of offences punishable under
the Excise Act may, without the order of a Magistrate, investigate C
any such offence which a court having jurisdiction within the local
area to which such officer is appointed would have power to
enquire into or try under the aforesaid provisions. By virtue of
these provisions the Lieutenant Governor of Bihar and Orissa by
Notification 470-F dated 15-1-1919 has specially empowered
D
Inspectors of Excise and Sub-Inspectors of Excise to investigate
any offence punishable under the Act. It is not disputed before us
that this notification is still in force. By virtue of the provisions of
Section 92 the Act it shall have effect as if enacted in the Act. It
would thus follow that an Excise Inspector or Sub-Inspector in
the State of Bihar shall be deemed to be an officer in charge of a E
police station with respect to the area to which he is appointed
and is in that capacity entitled to investigate any offence under
the Excise Act within that area without the order of Magistrate.
Thus he can excise all the powers which an officer in charge of a
police station can exercise under Chapter XIV of the Code of
F
Criminal Procedure. He can investigate into offences, record
statements of the persons questioned by him, make searches, seize
any articles connected with an offence under the Excise Act,
arrest an accused person, grant him bail, send him up for trial
before a Magistrate, file a charge-sheet and so on. Thus his position
in so far as offences under the Excise Act committed within the G
area to which his appointment extends are concerned is no
different from that of an officer in charge of a police station. As
regards these offences not only is he charged with the duty of
preventing their commission but also with their detection and is
for these purposes empowered to act in all respects as an officer
H
714 SUPREME COURT REPORTS [2020] 12 S.C.R.

A in charge of a police station. No doubt unlike an officer in charge
of a police station he is not charged with the duty of the
maintenance of law and order nor can he exercise the powers of
such officer with respect to offences under the general law or
under any other special laws. But all the same, in so far as offences
under the Excise Act are concerned, there is no distinction
B
whatsoever in the nature of the powers he exercises and those
which a police officer exercises in relation to offences which it is
his duty to prevent and bring to light. It would be logical, therefore,
to hold that a confession recorded by him during an investigation
into an excise offence cannot reasonably be regarded as anything
C different from a confession to a police officer. For, in conducting
the investigation he exercises the powers of a police officer and
the act itself deems him to be a police officer, even though he
does not belong to the police force constituted under the Police
Act. It has been held by this court that the expression “police
officer” in Section 25 of the Evidence Act is not confined to persons
D
who are members of the regularly constituted police force. The
position of an Excise Officer empowered under Section 77(2) of
the Bihar and Orissa Excise Act is not analogous to that of a
Customs Officer for two reasons. One is that the Excise Officer,
does not exercise any judicial powers just as the Customs Officer
E does under the Sea Customs Act, 1878. Secondly, the Customs
Officer is not deemed to be an officer in charge of a police station
and therefore can exercise no powers under the Code of Criminal
Procedure and certainly not those of an officer in charge of a
police station. No doubt, he too has the power to make a search,
to seize articles suspected to have been smuggled and arrest
F
persons suspected of having committed an offence under the Sea
Customs Act. But that is all. Though he can make an enquiry, he
has no power to investigate into an offence under Section 156 of
the Code of Criminal Procedure. Whatever powers he exercises
are expressly set out in the Sea Customs Act. Though some of
G those set out in Chapter XVII may be analogous to those of a
police officer under the Code of Criminal Procedure they are not
identical with those of a police officer and are not derived from or
by reference to the Code. In regard to certain matters, he does
not possess powers even analogous to those of a Police Officer.
Thus he is not entitled to submit a report to a Magistrate under
H Section 190 of the Code of Criminal Procedure with a view that
TOFAN SINGH v. STATE OF TAMIL NADU 715
[R. F. NARIMAN, J.]

cognizance of the offence be taken by the Magistrate. Section A
187(A) of the Sea Customs Act specially provides that cognizance
of an offence under the Sea Customs Act can be taken only upon
a complaint in writing made by the Customs Officers or other
officer of the customs not below the rank of an Assistant Collector
of Customs authorised in this behalf by the Chief Customs Officer.
B
It may well be that a statute confers powers and impose duties on
a public servant, some of which are analogous to those of a police
officer. But by reason of the nature of other duties which he is
required to perform he may be exercising various other powers
also. It is argued on behalf of the State that where such is the
case the mere conferral of some only of the powers of a police C
officer on such a person would not make him a police officer and,
therefore, what must be borne in mind is the sum total of the
powers which he enjoys by virtue of his office as also the dominant
purpose for which he is appointed. The contention thus is that
when an officer has to perform a wide range of duties and exercise D
correspondingly a wide range of powers, the mere fact that some
of the powers which the statute confers upon him are analogous
to or even identical with those of a police officer would not make
him a police officer and, therefore, if such an officer records a
confession it would not be hit by Section 25 of the Evidence Act.
In our judgment what is pertinent to bear in mind for the purpose E
of determining as to who can be regarded a “police officer” for
the purpose of this provision is not the totality of the powers which
an officer enjoys but the kind of powers which the law enables
him to exercise. The test for determining whether such a person
is a “police officer” for the purpose of Section 25 of the Evidence F
Act would, in our judgment, be whether the powers of a police
officer which are conferred on him or which are exercisable by
him because he is deemed to be an officer in charge of police
station establish a direct or substantial relationship with the
prohibition enacted by Section 25, that is, the recording of a
confession. In our words, the test would be whether the powers G
are such as would to facilitate the obtaining by him of a confession
from a suspect or delinquent. If they do, then it is unnecessary to
consider the dominant purpose for which he is appointed or the
question as to what other powers he enjoys. These questions may
perhaps be relevant for consideration where the powers of the H
716 SUPREME COURT REPORTS [2020] 12 S.C.R.

A police officer conferred upon him are of a very limited character
and are not by themselves sufficient to facilitate the obtaining by
him of a confession.
(at pages 762-766)
99. In a significant sentence, the Court held:
B
“It is the power of investigation which establishes a direct
relationship with the prohibition enacted in Section 25.”
(at page 768)
100. After referring to the object sought to be achieved by section
C 25, the Court went on to hold:
“This provision was thus enacted to eliminate from consideration
confessions made to an officer who, by virtue of his position, could
extort by force, torture or inducement a confession. An Excise
Officer acting under Section 78(3) would be in the same position
D as an Officer in charge of a police station making an investigation
under Chapter XIV of the Code of Criminal Procedure. He would
likewise have the same opportunity of extorting a confession from
a suspect. It is, therefore, difficult to draw a rational distinction
between a confession recorded by a police officer strictly so called
and recorded by an Excise Officer who is deemed to be a police
E
officer.”
(at page 769)
101. The Court abjured shortcuts to obtaining convictions under
the Act as follows:
F “We agree with the learned Judge that by and large it is the duty
of detection of offences and of bringing offenders to justice, which
requiresan investigation to be made, that differentiates police
officers from private individuals or from other agencies of State.
Being concerned with the investigation, there is naturally a desire
G on the part of a police officer to collect as much evidence as
possible against a suspected offender apprehended by him and in
his zeal to do so he is apt to take recourse to an easy means, that
is, of obtaining a confession by using his position and his power
over the person apprehended by him.”

H (at page 776)
TOFAN SINGH v. STATE OF TAMIL NADU 717
[R. F. NARIMAN, J.]

102. The majority ended the judgment by stating: A
“There is one more reason also why the confession made to an
Excise Sub-Inspector must be excluded, that is, it is a statement
made during the course of investigation to a person who exercises
the powers of an officer in charge of a police station. Such
statement is excluded from evidence by Section 162 of the Code B
of Criminal Procedure except for the purpose of contradiction.
Therefore, both by Section 25 of the Evidence Act as well as by
Section 162 CrPC the confession of the appellant is inadmissible
in evidence. If the confession goes, then obviously the conviction
of the appellant cannot be sustained. Accordingly we allow the
appeal and set aside the conviction and sentences passed on the C
appellant.”
(page 778-779)
103. Raghubar Dayal, J. dissented. His dissent contains a useful
summary of Barkat Ram (supra) as follows: D
“In State of Punjab v. Barkat Ram this Court held that a customs
officer is not a police officer within the meaning of Section 25 of
the Evidence Act. The view was based on the following
considerations:
(1) The powers which a police officer enjoys are powers for the E
effective prevention and detection of crime in order to maintain
law and order while a customs officer is not primarily concerned
with the detection and punishment of crime committed by a person
but is mainly interested in the detection and prevention of smuggling
of goods and safeguarding the recovery of customs duties. F
(2) The mere fact that customs officers possess certain powers
similar to those of police officers in regard to detection of infractions
of customs laws, is not a sufficient ground for holding them to be
police officers within the meaning of Section 25 of the Evidence
Act, even though the word “police officer” are not to be construed
G
in a narrow way but have to be construed in a wide and popular
sense, as remarked in Queen v. Hurribole. The expression “police
officer” is not of such wide meaning as to include persons on
whom certain police powers are incidentally conferred.
(3) A confession made to any police officer, whatever be his rank
and whatever be the occasion for making it, is inadmissible in H
718 SUPREME COURT REPORTS [2020] 12 S.C.R.

A evidence but a confession made to a customs officer when he be
not discharging any such duty which corresponds to the duty of a
police officer will be inadmissible even if the other view be correct
that he was police officer when exercising such powers.
(4) The Sea Customs Act itself refers to “police officer” in
B contradistinction to Customs Officer.
(5) Customs Officers act judicially when they act under the Sea
Customs Act to prevent smuggling of goods and imposing
confiscation and Penalties, and proceedings before them are
judicial proceeding for purpose of Sections 193 and 228 IPC.”
C (at pages 779-780)
104. The minority judgment held:
“I therefore hold that the Excise Inspector and Sub-Inspector
empowered by the State Government under Section 77(2) of the
D Act are not police officers within the meaning of Section 25 of
the Evidence Act and that the aforesaid officers cannot be treated
to be police officers for the purposes of Section 162 of the Code
of Criminal Procedure. Section 162 does not confer any power
on a police officer. It deals with the use which can be made of the
statements recorded by a police officer carrying out investigation
E under Chapter XIV of the Code. The investigation which the
aforesaid Excise Officer conducts is not under Chapter XIV of
the Code, but is under the provisions of the Act and therefore this
is a further reason for the non-applicability of Section 162 CrPC
to any statements made by a person to an Excise Officer during
F the course of his investigating an offence under the Act.”
(at page 808)
105. The test laid down by the majority in Raja Ram
Jaiswal(supra)for determining whether a person is a police officer under
section 25 of the Evidence Act, is whether a direct or substantial
G relationship with the prohibition enacted by section 25 is established,
namely, whether powers conferred are such as would tend to facilitate
the obtaining by such officer of a confession from a suspect or delinquent,
and this happens if a power of investigation, which culminates in a police
report, is given to such officer.
H
TOFAN SINGH v. STATE OF TAMIL NADU 719
[R. F. NARIMAN, J.]

106. Both these judgments came to be considered in the A
Constitution Bench judgment in Badku Joti Savant (supra). In this
case, the appellant was prosecuted under the Central Excise and Salt
Act, 1944. The Court expressly left open the question as to whether the
“broader” or “narrower” meaning of police officer, as deliberated in the
aforementioned two judgments, is correct.It proceeded on the footing
B
that the broad view may be accepted to test the statute in question – see
pages 701, 702. The Court referred to the main purpose of the Central
Excise Act as follows:
“The main purpose of the Act is to levy and collect excise duties
and Central Excise Officers have been appointed thereunder for
this main purpose. In order that they may carry out their duties in C
this behalf, powers have been conferred on them to see that duty
is not evaded and persons guilty of evasion of duty are brought to
book.
xxx xxxxxx
D
Section 19 lays down that every person arrested under the Act
shall be forwarded without delay to the nearest Central Excise
Officer empowered to send persons so arrested to a Magistrate,
or, if there is no such Central Excise Officer within a reasonable
distance, to the officer-in-charge of the nearest police station.
These sections clearly show that the powers of arrest and search E
conferred on Central Excise Officers are really in support of their
main function of levy and collection of duty on excisable goods.”
(at page 702)
107. Section 21 of the Central Excise Act, 1944 was then set out F
as follows:
“21.(1) When any person is forwarded under section 19 to a
Central Excise Officer empowered to send persons so arrested
to a Magistrate, the Central Excise Officer shall proceed to inquire
into the charge against him.
G
(2) For this purpose the Central Excise Officer may exercise the
same powers and shall be subject to the same provisions as the
officer-in-charge of a police station may exercise and is subject
to under the Code of Criminal Procedure, 1898, when investigating
a cognizable case;
H
720 SUPREME COURT REPORTS [2020] 12 S.C.R.

A Provided that-
(a) if the Central Excise Officer is of opinion that there is sufficient
evidence or reasonable ground of suspicion against the
accused person, he shall either admit him to bail to appear
before a Magistrate having jurisdiction in the case, or forward
B him to custody of such Magistrate;
(b) if it appears to the Central Excise Officer that there is not
sufficient evidence or reasonable ground of suspicion against
the accused person, he shall release the accused person on
his executing a bond, with or without sureties as the Central
C Excise Officer may direct, to appear, if and when so required
before a Magistrate having jurisdiction, and shall make a full
report of all the particulars of the case to his official superior.”
108. The Court therefore held:
“It is urged that under sub-section (2) of Section 21 a Central
D Excise Officer under the Act has all the powers of an officer
incharge of a police station under Chapter XIV of the Code of
Criminal Procedure and therefore he must be deemed to be a
police officer within the meaning of those words in Section 25 of
the Evidence Act. It is true that sub-section (2) confers on the
E Central Excise Officer under the Act the same powers as an
officer incharge of a police station has when investigating a
cognizable case; but this power is conferred for the purpose of
sub-section (1) which gives power to a Central Excise Officer to
whom any arrested person is forwarded to inquire into the charge
against him. Thus under Section 21 it is the duty of the Central
F Excise Officer to whom an arrested person is forwarded to inquire
into the charge made against such person. Further under proviso
(a) to sub-section (2) of Section 21 if the Central Excise Officer
is of opinion that there is sufficient evidence or reasonable ground
of suspicion against the accused person, he shall either admit him
G to bail to appear before a Magistrate having jurisdiction in the
case, or forward him in custody to such Magistrate. It does not
however appear that a Central Excise Officer under the Act has
power to submit a charge-sheet under Section 173 of the Code of
Criminal Procedure. Under Section 190 of the Code of Criminal
Procedure a Magistrate can take cognizance of any offence either
H (a) upon receiving a complaint of facts which constitute such
TOFAN SINGH v. STATE OF TAMIL NADU 721
[R. F. NARIMAN, J.]

offence, or (b) upon a report in writing of such facts made by any A
police officer, or (c) upon information received from any person
other than a police officer, or upon his own knowledge or suspicion,
that such offence has been committed. A police officer for
purposes of clause (b) above can in our opinion only be a police
officer properly so-called as the scheme of the Code of Criminal
B
Procedure shows and it seems therefore that a Central Excise
Officer will have to make a complaint under clause (a) above if
he wants the Magistrate to take cognizance of an offence, for
example, under Section 9 of the Act. Thus though under sub-
section (2) of Section 21 the Central Excise Officer under the
Act has the powers of an officer incharge of a police station C
when investigating a cognizable case, that is for the purpose of
his inquiry under sub-section (1) of Section 21. Section 21 is in
terms different from Section 78(3) of the Bihar and Orissa Excise
Act, 1915 which came to be considered in Raja Ram Jaiswal’s
case [(1964) 2 SCR 752] and which provided in terms that “for
D
the purposes of Section 156 of the Code of Criminal Procedure,
1898, the area to which an excise officer empowered under Section
77, sub-section (2), is appointed shall be deemed to be a police-
station, and such officer shall be deemed to be the officer incharge
of such station”. It cannot therefore be said that the provision in
Section 21 is on par with the provision in Section 78(3) of the E
Bihar and Orissa Excise Act. All that Section 21 provides is that
for the purpose of his enquiry, a Central Excise Officer shall have
the powers of an officer incharge of a police station when
investigating a cognizable case. But even so it appears that these
powers do not include the power to submit a charge-sheet under
F
Section 173 of the Code of Criminal Procedure for unlike the
Bihar and Orissa Excise Act, the Central Excise Officer is not
deemed to be an officer incharge of a police station.”
(at pages 703-704)
109. Having regard to the statutory scheme contained in the G
Central Excise Act, more particularly sections 21(1) and proviso (a) to
section 21(2), the Court held that a Central Excise officer had no power
to submit a charge-sheet under section173(2) of the CrPC, as such officer
is only empowered to send persons who are arrested to a Magistrate
under these provisions.
H
722 SUPREME COURT REPORTS [2020] 12 S.C.R.

A 110. The Court distinguished Raja Ram Jaiswal (supra), and held
that this case being under the Central Excise Act, which is a revenue
statute like the Land Customs Act, 1924 and the Sea Customs Act, 1878,
would be more in accord with the case of Barkat Ram (supra) – see
page 704.
B 111. The next judgment in chronological order is Romesh Chandra
Mehta (supra).Here again, a Constitution Bench was concerned with
the same question under section 25 of the Evidence Act when read with
enquiries made under section 171-A of the Sea Customs Act, 1878. The
Court had no difficulty in finding that such customs officer could not be
said to be a police officer for the purpose of section 25 of the Evidence
C Act, holding:
“Under the Sea Customs Act, a Customs Officer is authorised to
collect customs duty to prevent smuggling and for that purpose he
is invested with the power to search any person on reasonable
suspicion(Section 169); to screen or X-ray the body of a person
D for detecting secreted goods (Section 170-A); to arrest a person
against whom a reasonable suspicion exists that he has been guilty
of an offence under the Act (Section 173); to obtain a search
warrant from a Magistrate to search any place within the local
limits of the jurisdiction of such Magistrate (Section 172); to collect
E information by summoning persons to give evidence and produce
documents (Section 171-A); and to adjudge confiscation under
Section 182. He may exercise these powers for preventing
smuggling of goods dutiable or prohibited and for adjudging
confiscation of those goods. For collecting evidence the Customs
Officer is entitled to serve a summons to produce a document or
F other thing or to give evidence, and the person so summoned is
bound to attend either in person or by an authorized agent, as
such officer may direct, and the person so summoned is bound to
state the truth upon any subject respecting which he is examined
or makes a statement and to produce such documents and other
G things as may be required. The power to arrest, the power to
detain, the power to search or obtain a search warrant and the
power to collect evidence are vested in the Customs Officer for
enforcing compliance with the provisions of the Sea Customs Act.
For purpose of Sections 193 and 228 of the Indian Penal Code the
enquiry made by a Customs Officer is a judicial proceeding. An
H order made by him is appealable to the Chief Customs Authority
TOFAN SINGH v. STATE OF TAMIL NADU 723
[R. F. NARIMAN, J.]

under Section 188 and against that order revisional jurisdiction A
may be exercised by the Chief Customs Authority and also by the
Central Government at the instance of any person aggrieved by
any decision or order passed under the Act. The Customs Officer
does not exercise, when enquiring into a suspected infringement
of the Sea Customs Act, powers of investigation which a police
B
officer may in investigating the commission of an offence. He is
invested with the power to enquire into infringements of the Act
primarily for the purpose of adjudicating forfeiture and penalty.
He has no power to investigate an offence triable by a Magistrate,
nor has he the power to submit a report under Section 173 of the
Code of Criminal Procedure. He can only make a complaint in C
writing before a competent Magistrate.”
(at pages 466-467)
112. Barkat Ram (supra), Raja Ram Jaiswal (supra) and Badku
Joti Savant (supra) were all referred to. The Court then laid down,
what according to it was the true test for determining whether an officer D
of customs is to be deemed to be a police officer, as follows:
“But the test for determining whether an officer of customs is to
be deemed a police officer is whether he is invested with all the
powers of a police officer qua investigation of an offence, including
the power to submit a report under Section 173 of the Code of E
Criminal Procedure. It is not claimed that a Customs Officer
exercising power to make an enquiry may submit a report under
Section 173 of the Code of Criminal Procedure.”
(at page 469)
F
113. This judgment was followed by the judgment in Illias (supra),
in which the same question arose, this time under the Customs Act,
1962. In a significant passage, the Constitution Bench held that there
was no conflict between Raja Ram Jaiswal (supra) and Barkat Ram
(supra) as follows:
G
“Indeed in a recent decision of this court P. Shankar Lal v. Asstt.
Collector of Customs, Madras [Cr. As 52 & 104/65 decided on
12-12-1967] it has been reaffirmed that there is no conflict between
the cases of Raja Ram Jaiswal and Barkat Ram, the former being
distinguishable from the latter.”
(at page 616) H
724 SUPREME COURT REPORTS [2020] 12 S.C.R.

A 114. The Court then referred to the Sea Customs Act, 1878 and
the Customs Act, 1962, highlighting the fact that section 108 of the
Customs Act, 1962 confers power on a gazetted officer of Customs to
summons persons for giving evidence or producing documents - see
page 617. Section 104(3) of the Customs Act, 1962 was strongly relied
upon by learned counsel appearing on behalf of the appellant in that
B
case, which section provided that where an officer of customs has arrested
any person under sub-clause (1) of section 104, he shall for the purpose
of releasing such person on bail or otherwise have the same power and
be subject to the same provisions as an officer-in-charge of a police
station has and is subject to under the CrPC. It was noticed that the
C offences under the Customs Act were non-cognizable – see section
104(4). It was then held that the expression “otherwise” clearly relates
to releasing a person who has been arrested and cannot encompass
anything beyond that – see page 617. Raja Ram Jaiswal (supra) was
referred to, including the test laid down in that judgment at page 766 –
see pages 619, 620. Badku Joti Savant (supra) was then referred
D
to.The Court concluded:
“It was reiterated that the appellant could not take advantage of
the decision in Raja Ram Jaiswal’s case and that Barkat Ram’s
case was more apposite. The ratio of the decision in Badku Joti
Savant is that even if an officer under the special Act has been
E invested with most of the powers which an officer in charge of a
police station exercises when investigating a cognizable offence
he does not thereby became a police officer within the meaning
of Section 25 of the Evidence Act unless he is empowered to file
a charge-sheet under Section 173 of the Code of Criminal
F Procedure.
Learned counsel for the appellant when faced with the above
difficulty has gone to the extent of suggesting that by necessary
implication the power to file a charge-sheet flows from some of
the powers which have already been discussed under the new
G Act and that a customs officer is entitled to exercise even this
power. It is difficult and indeed it would be contrary to all rules of
interpretation to spell out any such special power from any of the
provisions contained in the new Act.”
(at pages 621-622)
H
TOFAN SINGH v. STATE OF TAMIL NADU 725
[R. F. NARIMAN, J.]

115. Two other judgments of this Court, this time under the A
Railways Property (Unlawful Possession) Act, 1966 held that members
of the Railway Protection Force could not be said to be police officers
within the meaning of section 25 of the Evidence Act.
116. In State of U.P. v. Durga Prasad (1975) 3 SCC 210, a
Division Bench of this Court referred to section 8 of the said Act, which B
is similar to section 21 of the Central Excise Act, as follows:
“6. Section 8 of the Act reads thus:
“8. (1) When any person is arrested by an officer of the Force for
an offence punishable under this Act or is forwarded to him under
Section 7, he shall proceed to inquire into the charge against such C
person.
(2) For this purpose the officer of the Force may exercise the
same powers and shall be subject to the same provisions as the
officer in charge of a police station may exercise and is subject to
under the Code of Criminal Procedure, 1898, when investigating D
a cognizable case;
Provided that—
(a) if the officer of the Force is of opinion that there is sufficient
evidence or reasonable ground of suspicion against the accused
E
person, he shall either admit him to bail to appear before a
Magistrate having jurisdiction in the case, or forward him in custody
to such Magistrate;
(b) if it appears to the officer of the Force that there is no sufficient
evidence or reasonable ground of suspicion against the accused
F
person, he shall release the accused person on his executing a
bond, with or without sureties as the officer of the Force may
direct, to appear, if and when so required before the Magistrate
having jurisdiction, and shall make a full report of all the particulars
of the case to his official superior.”
117. The Court held: G

“18. The right and duty of an Investigating Officer to file a police
report or a charge-sheet on the conclusion of investigation is the
hallmark of an investigation under the Code. Section 173(1)(a) of
the Code provides that as soon as the investigation is completed
H
726 SUPREME COURT REPORTS [2020] 12 S.C.R.

A the officer-in-charge of the police-station shall forward to a
Magistrate empowered to take cognizance of the offence on a
police report, a report in the form prescribed by the State
Government. The officer conducting an inquiry under Section 8(1)
cannot initiate court proceedings by filing a police report as is
evident from the two Provisos to Section 8(2) of the Act. Under
B
Proviso (a), if the officer of the Force is of the opinion that there
is sufficient evidence or reasonable ground of suspicion against
the accused, he shall either admit the accused to bail to appear
before a Magistrate having jurisdiction in the case or forward him
in custody to such Magistrate. Under Proviso (b), if it appears to
C the officer that there is no sufficient evidence or reasonable ground
of suspicion against the accused, he shall release him on a bond to
appear before the Magistrate having jurisdiction and shall make a
full report of all the particulars of the case to his superior officer.
The duty cast by Proviso (b) on an officer of the Force to make a
full report to his official superior stands in sharp contrast with the
D
duty cast by Section 173(1)(a) of the Code on the officer-in-charge
of a police station to submit a report to the Magistrate empowered
to take cognizance of the offence. On the conclusion of an inquiry
under Section 8(1), therefore, if the officer of the Force is of the
opinion that there is sufficient evidence or reasonable ground of
E suspicion against the accused, he must file a complaint under
Section 190(1)(a) of the Code in order that the Magistrate
concerned may take cognizance of the offence.
19. Thus an officer conducting an inquiry under Section 8(1) of
the Act does not possess all the attributes of an officer-in-charge
F of a police station investigating a case under Chapter XIV of the
Code. He possesses but a part of those attributes limited to the
purpose of holding the inquiry.
20. That the Inquiry Officers cannot be equated generally with
police officers is clear from the object and purpose of The Railway
G Protection Force Act, XXIII of 1957, under which their
appointments are made. The short title of that Act shows that it
was passed in order “to provide for the constitution and regulation
of a Force called the Railway Protection Force for the better
protection and security of Railway property”. Section 3(1) of the
Act of 1957 empowers the Central Government to constitute and
H maintain the Railway Protection Force for the better protection
TOFAN SINGH v. STATE OF TAMIL NADU 727
[R. F. NARIMAN, J.]

and security of Railway property. By Section 10, the Inspector A
General and every other superior officer and member of the Force
“shall for all purposes be regarded as Railway servants within the
meaning of the Indian Railways Act, 1890, other than Chapter
VI-A thereof, and shall be entitled to exercise the powers conferred
on Railway servants by or under that Act”. Section 11 which
B
defines duties of every superior officer and member of the Force
provides that they must promptly execute all orders lawfully issued
to them by their superior authority; protect and safeguard Railway
property; remove any obstruction in the movement of Railway
property and do any other act conducive to the better protection
and security of Railway property. Section 14 imposes a duty on C
the superior officers and members of the Force to make over
persons arrested by them to a police officer or to take them to the
nearest police station. These provisions are incompatible with the
position that a member of the Railway Protection Force holding
an inquiry under Section 8(1) of the Act can be deemed to be a
D
police officer-in-charge of a police station investigating into an
offence. Members of the Force are appointed under the authority
of the Railway Protection Force Act, 1957, the prime object of
which is the better protection and security of Railway property.
Powers conferred on members of the Force are all directed
towards achieving that object and are limited by it. It is significant E
that the Act of 1957, by Section 14, makes a distinction between
a member of the Force and a police officer properly so called.”
118. Reference was then made to Barkat Ram (supra) and
Badku Joti Savant (supra), the decision in Raja Ram Jaiswal (supra)
being distinguished, as follows: F
“23. The decision in Raja Ram Jaiswal v. State of Bihar on which
the respondent relies was considered and distinguished in Badku
Joti Savant’s case. Raja Ram Jaiswal case involved the
interpretation of Section 78(3) of the Bihar and Orissa Excise
Act, 1915 which provided in terms that: G
“For the purposes of Section 156 of the Code of Criminal
Procedure, 1898, the area to which an Excise Officer empowered
under Section 7,7 sub-section (2), is appointed, shall be deemed to
be a police station, and such officer shall be deemed to be the
officer-in-charge of such station.” H
728 SUPREME COURT REPORTS [2020] 12 S.C.R.

A There is no provision in the Act before us corresponding to Section
78(3) of the Bihar Act and therefore the decision is distinguishable
for the same reasons for which it was distinguished in Badku
Joti Savant’s case.”
119. In Balkishan A. Devidayal (supra), the same question as
B arose in Durga Prasad (supra) arose before a Division Bench of this
Court. This Court held in paragraph18 that Durga Prasad (supra) really
concluded the question posed before the Court. It then held:
“20. From the above survey, it will be seen that the primary object
of constituting the Railway Protection Force is to secure better
C “protection and security of the railway property”. The restricted
power of arrest and search given to the officers or members of
the Force is incidental to the efficient discharge of their basic
duty to protect and safeguard railway property. No general
power to investigate all cognizable offences relating to railway
property, under the criminal procedure code has been conferred
D on any superior officer or member of the Force by the 1957 Act.
Section 14 itself makes it clear that even with regard to an offence
relating to “railway property”, the superior officer or member of
the Force making an arrest under Section 13 shall forthwith make
over the person arrested to a police officer, or cause his production,
E in the nearest police station.”
120. The Court noticed that offences under this Act were non-
cognizable – see paragraph 27 – and concluded:
“30. Section 7 of the Act provides that the procedure for
investigation of a cognizable offence has to be followed by the
F officer before whom the accused person is produced.
31. Reading Section 7 of the 1966 Act with that of Section 14 of
the 1957 Act, it is clear that while in the case of a person arrested
under Section 12 of the 1957 Act the only course open to the
superior officer or member of the Force was to make over the
G person arrested to a police officer, in the case of a person arrested
for a suspected offence under the 1966 Act, he is required to be
produced without delay before the nearest officer of the Force,
who shall obviously be bound [in view of Article 22(1) of the
Constitution] to produce him further before the Magistrate
concerned.”
H
TOFAN SINGH v. STATE OF TAMIL NADU 729
[R. F. NARIMAN, J.]

121. The Court then referred to section 8 of the Act, making it A
clear that the enquiry under section 8(1) shall be deemed to be a judicial
proceeding – see paragraph 34.Differences between sections 161-162
of the CrPC and sections 9(3) and (4) of the Act were then pointed out
as follows:
“35. The fourth important aspect in which the power and duty of B
an officer of the RPF conducting an inquiry under the 1966 Act,
differs from a police investigation under the Code, is this. Sub-
section (3) of Section 161 of the Code says that the police officer
may reduce into writing any statement made to him in the course
of investigation. Section 162(1), which is to be read in continuation
of Section 161 of the Code, prohibits the obtaining of signature of C
the person on his statement recorded by the investigating officer.
But no such prohibition attaches to statements recorded in the
course of an inquiry under the 1966 Act; rather, from the obligation
to state the truth under pain of prosecution, enjoined by Section
9(3) and (4), it follows as a corollary, that the officer conducting D
the inquiry may obtain signature of the person who made the
statement.
36. Fifthly, under the proviso to sub-section (1) of Section 162 of
the Code, oral or recorded statement made to a police officer
during investigation may be used by the accused and with the E
permission of the court by the prosecution to contradict the
statement made by the witness in court in the manner provided in
Section 145 of the Evidence Act, or when the witnesses statement
is so used in cross-examination, he may be re-examined if any
explanation is necessary. The statement of a witness made to a
police officer during investigation cannot be used for any other F
purpose, whatever, except of course when it falls within Section
32 or 27 of the Evidence Act. The prohibition contained in Section
162 extends to all statements, confessional or otherwise, during a
police investigation made by any person whether accused or not,
whether reduced to writing or not, subject to the proviso. In contrast G
with the Code, in the 1966 Act, there is no provision analogous to
the proviso to Section 162(1) of the Code, which restricts or
prohibits the use of a statement recorded by an officer in the
course of an inquiry under Sections 8 and 9 of the Act.”
122. Most importantly, it was then held: H
730 SUPREME COURT REPORTS [2020] 12 S.C.R.

A “37. Sixthly, the primary duty of a member/officer of the RPF is
to safeguard and protect railway property. Only such powers of
arrest and inquiry have been conferred by the 1966 Act on members
of the RPF as are necessary and incidental to the efficient and
effective discharge of the basic duty of watch and ward. Unlike a
police officer who has a general power under the Code to
B
investigate all cognizable cases the power of an officer of the
RPF to make an inquiry is restricted to offences under the 1966
Act.
xxx xxxxxx
C 38…An officer of the RPF making an inquiry under the 1966
Act, cannot, by any stretch of imagination, be called an “officer in
charge of a police station” within the meaning of Sections 173
and 190(b) of the Code. The mode of initiating prosecution by
submitting a report under Section 173 read with clause (b) of
Section 190 of the Code is, therefore, not available to an officer
D of the RPF who has completed an inquiry into an offence under
the 1966 Act. The only mode of initiating prosecution of the person
against whom he has successfully completed the inquiry, available
to an officer of the RPF, is by making a complaint under Section
190(1)(a) of the Code to the Magistrate empowered to try the
E offence. That an officer of the Force conducting an inquiry under
Section 8(1) cannot initiate proceedings in court by a report under
Sections 173/190(1)(b) of the Code, is also evident from the
provisos to sub-section (2) of Section 8 of the 1966 Act. Under
proviso (a), if such officer is of opinion that there is sufficient
evidence or reasonable ground of suspicion against the accused,
F he shall either direct him (after admitting him to bail) to appear
before the Magistrate having jurisdiction or forward him in custody
to such Magistrate. Under proviso (b), if it appears to the officer
that there is no sufficient evidence or reasonable ground of
suspicion against the accused, he shall release him on bond to
G appear before the Magistrate concerned “and shall make a full
report of all the particulars of the case to his superior officer”.
Provisos (a) and (b) put it beyond doubt that where after completing
an inquiry, the officer of the Force is of opinion that there is
sufficient evidence or reasonable ground of suspicion against the
accused, he must initiate prosecution of the accused by making a
H
TOFAN SINGH v. STATE OF TAMIL NADU 731
[R. F. NARIMAN, J.]

complaint under Section 190(1)(a) of the Code to the Magistrate A
competent to try the case.
39. From the comparative study of the relevant provisions of the
1966 Act and the Code, it is abundantly clear that an officer of the
RPF making an inquiry under Section 8(1) of the 1966 Act does
not possess several important attributes of an officer in charge of B
a police station conducting an investigation under Chapter XIV of
the Code. The character of the “inquiry” is different from that of
an “investigation” under the Code. The official status and powers
of an officer of the Force in the matter of inquiry under the 1966
Act differ in material aspects from those of a police officer
conducting an investigation under the Code.” C

123. This Court then referred to all the earlier judgments of this
Court, including that of Durga Prasad (supra), and concluded:
“58. In the light of the above discussion, it is clear that an officer
of the RPF conducting an inquiry under Section 8(1) of the 1966 D
Act has not been invested with all the powers of an officer in
charge of a police station making an investigation under Chapter
XIV of the Code. Particularly, he has no power to initiate
prosecution by filing a charge-sheet before the Magistrate
concerned under Section 173 of the Code, which has been held to
be the clinching attribute of an investigating “police officer”. Thus, E
judged by the test laid down in Badku Joti Savant, which has
been consistently adopted in the subsequent decisions noticed
above, Inspector Kakade of the RPF could not be deemed to be a
“police officer” within the meaning of Section 25 of the Evidence
Act, and therefore, any confessional or incriminating statement F
recorded by him in the course of an inquiry under Section 8(1) of
the 1966 Act, cannot be excluded from evidence under the said
section.”
124. In State of Gujarat v. Anirudhsing and Anr. (1997) 6 SCC
514, one of the questions which arose before this Court was as to whether G
a member of the State Reserve Police Service acting under the Bombay
State Reserve Police Force Act, 1951 could be said to be a police officer
within the meaning of section 25 of the Evidence Act. The Court analysed
the aforesaid Bombay Act, and set out section 11(1) thereof, which states:

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732 SUPREME COURT REPORTS [2020] 12 S.C.R.

A “When employed on active duty at any place under sub-section
(1) of Section 10, the senior reserve police officer of highest rank,
not being lower than that of a Naik present, shall be deemed to be
an officer-in-charge of a police station for the purposes of Chapter
IX of the Code of Criminal Procedure, 1898, Act V of 1898.”
B 125. Since Chapter IX of the Code of Criminal Procedure, 1898,
which is the equivalent of Chapter X of the CrPC, deals with ‘maintenance
of public order and tranquillity’, the Court held:
“19. It would, thus, be clear that a senior reserve police officer
appointed under the SRPF Act, though is a police officer under
C the Bombay Police Act and an officer-in-charge of a police station,
he is in charge only for the purpose of maintaining law and order
and tranquillity in the society and the powers of investigation
envisaged in Chapter XII of the CrPC have not been invested
with him.”
D As a result, it was held that such officer could not be said to be a
“police officer” within the meaning of section 25 of the Evidence
Act.
126. The golden thread running through all these decisions –some
of these being decisions of five-Judge Benches which are binding upon
E us –beginning with Barkat Ram (supra), is that where limited powers
of investigation are given to officers primarily or predominantly for some
purpose other than the prevention and detection of crime, such persons
cannot be said to be police officers under section 25 of the Evidence
Act. What must be remembered is the discussion in Barkat Ram (supra)
that a “police officer” does not have to be a police officer in the narrow
F sense of being a person who is a police officer so designated attached to
a police station. The broad view has been accepted, and never dissented
from, in all the aforesaid judgments, namely, that where a person who is
not a police officer properly so-called is invested with all powers of
investigation, which culminates in the filing of a police report, such officers
G can be said to be police officers within the meaning of section 25 of the
Evidence Act, as when they prevent and detect crime, they are in a
position to extort confessions, and thus are able to achieve their object
through a shortcut method of extracting involuntary confessions.
127. Shri Lekhi’s assault on Raja Ram Jaiswal (supra), stating
that it is wrongly decided and ought to be held to be per incuriam,
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TOFAN SINGH v. STATE OF TAMIL NADU 733
[R. F. NARIMAN, J.]

cannot be countenanced. Raja Ram Jaiswal (supra) correctly decided A
that the Court in Barkat Ram (supra) had held that the words “police
officer” to be found in section 25 of the Evidence Act are not to be
construed in a narrow way, but in a wide and popular sense. It is wholly
incorrect to say, from a strained reading of Barkat Ram (supra) that, in
reality, Barkat Ram (supra) preferred the “narrow” view over the
B
“broad” view. This is also contrary to the understanding of several
judgments of this Court which refer to Barkat Ram (supra), and which
continued to adopt the broad, and not narrow, test laid down in the said
judgment. Also, Raja Ram Jaiswal (supra) has been referred to by
several Constitution Benches of this Court, as has been pointed out by
us hereinabove, as also other Division Benches, and has never been C
doubted. In fact, it has always been distinguished in the revenue statute
cases as well as the railway protection force cases as being a case in
which all powers of investigation, which would lead to the filing of a
police report, were invested with excise officers, who therefore, despite
not belonging to the police force properly so-called, must yet be regarded
D
as police officers for the purpose of section 25 of the Evidence Act. The
vital link between section 25 and such officers then gets established,
namely, that in the course of investigation it is possible for such officers
to take a shortcut by extorting confessions from an accused person.
128. At this point, we come to the decision in Raj Kumar Karwal
(supra). In this case, the very question that arises before us arose before E
a Division Bench of this Court. The question was set out by the Division
Bench as follows:
“1. Are the officers of the Department of Revenue Intelligence
(DRI) who have been invested with the powers of an officer-in-
charge of a police station under Section 53 of Narcotic Drugs and F
Psychotropic Substances Act, 1985 (hereinafter called ‘the Act’),
“police officers” within the meaning of Section 25 of the Evidence
Act? If yes, is a confessional statement recorded by such officer
in the course of investigation of a person accused of an offence
under the said Act, admissible in evidence as against him? These G
are the questions which we are called upon to answer in these
appeals by special leave.”
129. The Court analysed the NDPS Act, and “conceded” that the
punishments prescribed for the various offences under the NDPS Act
are very severe. It then went on to hold: H
734 SUPREME COURT REPORTS [2020] 12 S.C.R.

A “11…We, therefore, agree that as Section 25, Evidence Act,
engrafts a wholesome protection it must not be construed in a
narrow and technical sense but must be understood in a broad
and popular sense. But at the same time it cannot be construed in
so wide a sense as to include persons on whom only some of the
powers exercised by the police are conferred within the category
B
of police officers. See State of Punjab v. Barkat Ram and Raja
Ram Jaiswal v. State of Bihar. This view has been reiterated in
subsequent cases also.”
130. After referring to all the cases that have been cited by us
hereinabove, the Court noticed the difference between the NDPS Act
C and the revenue statutes and railway statute previously considered in
some of the judgments of thisCourt, in that section 37 of the NDPS Act
makes offences punishable under the Act cognizable. The judgment then
went on to state:
“20… Section 52 deals with the disposal of persons arrested and
D articles seized under Sections 41, 42, 43 or 44 of the Act. It enjoins
upon the officer arresting a person to inform him of the grounds
for his arrest. It further provides that every person arrested and
article seized under warrant issued under sub-section (1) of Section
41 shall be forwarded without unnecessary delay to the Magistrate
E by whom the warrant was issued. Where, however, the arrest or
seizure is effected by virtue of Section 41(2), 42, 43 or 44 the
section enjoins upon the officer to forward the person arrested
and the article seized to the officer-in-charge of the nearest police
station or the officer empowered to investigate under Section 53
of the Act. Special provision is made in Section 52-A in regard to
F the disposal of seized narcotic drugs and psychotropic substances.
Then comes Section 53 which we have extracted earlier. Section
55 requires an officer-in-charge of a police station to take charge
of and keep in safe custody, pending the orders of the Magistrate,
all articles seized under the Act within the local area of that police
G station and which may be delivered to him. Section 57 enjoins
upon any officer making an arrest or effecting seizure under the
Act to make a full report of all the particulars of such arrest or
seizure to his immediate official superior within 48 hours next
after such arrest or seizure. These provisions found in Chapter V
of the Act show that there is nothing in the Act to indicate that all
H
TOFAN SINGH v. STATE OF TAMIL NADU 735
[R. F. NARIMAN, J.]

the powers under Chapter XII of the Code, including the power A
to file a report under Section 173 of the Code have been expressly
conferred on officers who are invested with the powers of an
officer-in-charge of a police station under Section 53, for the
purpose of investigation of offences under the Act.”
131. After referring to sections 41, 42, 43, 44, 52, 52A and 57 of B
the NDPS Act, the Court concluded that these powers are more or less
similar to the powers conferred on customs officers under the Customs
Act, 1962 – see paragraph 21. The Court then concluded:
22…The investigation which so commences must be concluded,
without unnecessary delay, by the submission of a report under C
Section 173 of the Code to the concerned Magistrate in the
prescribed form. Any person on whom power to investigate under
Chapter XII is conferred can be said to be a ‘police officer’, no
matter by what name he is called. The nomenclature is not
important, the content of the power he exercises is the
determinative factor. The important attribute of police power is D
not only the power to investigate into the commission of cognizable
offence but also the power to prosecute the offender by filing a
report or a charge-sheet under Section 173 of the Code. That is
why this Court has since the decision in Badku Joti
Savant accepted the ratio that unless an officer is invested under E
any special law with the powers of investigation under the Code,
including the power to submit a report under Section 173, he cannot
be described to be a ‘police officer’ under Section 25, Evidence
Act. Counsel for the appellants, however argued that since the
Act does not prescribe the procedure for investigation, the officers
invested with power under Section 53 of the Act must necessarily F
resort to the procedure under Chapter XII of the Code which
would require them to culminate the investigation by submitting a
report under Section 173 of the Code. Attractive though the
submission appears at first blush, it cannot stand close scrutiny. In
the first place as pointed out earlier there is nothing in the provisions G
of the Act to show that the legislature desired to vest in the officers
appointed under Section 53 of the Act, all the powers of Chapter
XII, including the power to submit a report under Section 173 of
the Code. But the issue is placed beyond the pale of doubt by sub-
section (1) of Section 36-A of the Act which begins with a non-
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736 SUPREME COURT REPORTS [2020] 12 S.C.R.

A obstante clause — notwithstanding anything contained in the Code
— and proceeds to say in clause (d) as under:
“36-A. (d) a Special Court may, upon a perusal of police
report of the facts constituting an offence under this Act or
upon a complaint made by an officer of the Central
B Government or a State Government authorised in this behalf,
take cognizance of that offence without the accused being
committed to it for trial.”
This clause makes it clear that if the investigation is conducted by
the police, it would conclude in a police report but if the investigation
C is made by an officer of any other department including the DRI,
the Special Court would take cognizance of the offence upon a
formal complaint made by such authorised officer of the concerned
government. Needless to say that such a complaint would have to
be under Section 190 of the Code. This clause, in our view, clinches
the matter. We must, therefore, negative the contention that an
D officer appointed under Section 53 of the Act, other than a police
officer, is entitled to exercise ‘all’ the powers under Chapter XII
of the Code, including the power to submit a report or charge-
sheet under Section 173 of the Code. That being so, the case
does not satisfy the ratio of Badku Joti Savant and subsequent
E decisions referred to earlier.”
132. Despite the fact that Raj Kumar Karwal (supra) notices
the fact that the NDPS Act prescribes offences which are “very severe”
and that section 25 is a wholesome protection which must be understood
in a broad and popular sense, yet it arrives at a conclusion that the
F designated officer under section 53 of the NDPS Act cannot be said to
be a police officer under section 25 of the Evidence Act. The Division
Bench also notices that, unlike all the revenue and railway protection
statues where offences are non-cognizable, the NDPS Act offences
are cognizable.It also notices that the NDPS Act deals with prevention
and detection of crimes of a very serious nature. However, Raj Kumar
G Karwal (supra) did not properly appreciate the following distinctions
that arise between the investigative powers of officers who are designated
in statutes primarily meant for revenue or railway purposes, as against
officers who are designated under section 53 of the NDPS Act: first,
that section 53 is located in a statute which contains provisions for the
H prevention, detection and punishment of crimes of a very serious nature.
TOFAN SINGH v. STATE OF TAMIL NADU 737
[R. F. NARIMAN, J.]

Even if the NDPS Act is to be construedas a statute which regulates A
and exercises control over narcotic drugs and psychotropic substances,
the prevention, detection and punishment of crimes related thereto cannot
be said to be ancillary to such object, but is the single most important and
effective means of achieving such object. This is unlike the revenue
statutes where the main object was the due realisation of customs duties
B
and the consequent ancillary checking of smuggling of goods (as in the
Land Customs Act, 1924, the Sea Customs Act, 1878 and the Customs
Act, 1962); the levy and collection of excise duties (as in the Central
Excise Act, 1944); or as in the Railway Property (Unlawful Possession
Act), 1966, the better protection and security of Railway property.
Second, unlike the revenue statutes and the Railway Act, all the offences C
to be investigated by the officers under the NDPS Act are cognizable.
Third, that section 53 of the NDPS Act, unlike the aforesaid statutes,
does not prescribe any limitation upon the powers of the officer to
investigate an offence under the Act, and therefore, it is clear that all the
investigative powers vested in an officer in charge of a police station
D
under the CrPC – including the power to file a charge-sheet – are vested
in these officers when dealing with an offence under the NDPS Act.
This is wholly distinct from the limited powers vested in officers under
the aforementioned revenue and railway statutes for ancillary purposes,
which have already been discussed by this Court in Barkat Ram (supra),
with reference to the Land Customs Act; Badku Joti Savant (supra), E
with reference to the Central Excise Act; Romesh Chandra Mehta
(supra), with reference to the Sea Customs Act; Illias(supra), with
reference to the Customs Act; and Durga Prasad (supra) and
Balkishan(supra) with reference to the Railway Act, to be in aid of the
dominant object of the statutes in question, which – as already alluded to
F
– were not primarily concerned with the prevention and detection of
crime, unlike the NDPS Act. Also, importantly, none of those statutes
recognised the power of the State police force to investigate offences
under those Acts together with the officers mentioned in those Acts, as
is the case in the NDPS Act. No question of manifest arbitrariness or
discrimination on the application of Article 14 of the Constitution of India G
would therefore arise in those cases, unlike cases which arise under the
NDPS Act, as discussed in paragraphs 67 to 70 hereinabove.
133. The Bench also failed to notice section 53A of the NDPS
Act and, therefore, falls into error when it states that the powers conferred
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738 SUPREME COURT REPORTS [2020] 12 S.C.R.

A under the NDPS Act can be assimilated with powers conferred on
customs officers under the Customs Act. When sections 53 and 53A
are seen together in the context of a statute which deals with prevention
and detection of crimes of a very serious nature, it becomes clear that
these sections cannot be construed in the same manner as sections
contained in revenue statutes and railway protection statutes.
B
134. The language of section 53(1) is crystal clear, and invests
the officers mentioned therein with the powers of “an officer-in-charge
of a police station for the investigation of the offences under this Act”.
The expression “officer in charge of a police station” is defined in the
CrPC as follows:
C
“(o) “officer in charge of a police station” includes, when the
officer in charge of the police station is absent from the station-
house or unable from illness or other cause to perform his duties,
the police officer present at the station-house who is next in rank
to such officer and is above the rank of constable or, when the
D State Government so directs, any other police officer so present;”
The expression “police report” is defined in section 2(r) of the
CrPC as follows:
“(r) “police report” means a report forwarded by a police officer
E to a Magistrate under sub-section (2) of section 173;”
135. Section 173(2) of the Code of Criminal Procedure, then
provides as follows:
“173. Report of police officer on completion of
investigation.—
F
xxx xxxxxx
(2) (i) As soon as it is completed, the officer in charge of the
police station shall forward to a Magistrate empowered to take
cognizance of the offence on a police report, a report in the form
prescribed by the State Government, stating—
G
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with
the circumstances of the case;
H
TOFAN SINGH v. STATE OF TAMIL NADU 739
[R. F. NARIMAN, J.]

(d) whether any offence appears to have been committed and, if A
so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, whether
with or without sureties;
B
(g) whether he has been forwarded in custody under section 170.
(h) whether the report of medical examination of the woman has
been attached where investigation relates to an offence under
sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB
or section 376E of the Indian Penal Code (45 of 1860). C
(ii) The officer shall also communicate, in such manner as may be
prescribed by the State Government, the action taken by him, to
the person, if any, by whom the information relating to the
commission of the offence was first given.”
136. Section 36A of the NDPS Act provides as follows: D
“36A. Offences triable by Special Courts.—(1)
Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974),—
(a) all offences under this Act which are punishable with
imprisonment for a term of more than three years shall be triable E
only by the Special Court constituted for the area in which the
offence has been committed or where there are more Special
Courts than one for such area, by such one of them as may be
specified in this behalf by the Government;
(b) where a person accused of or suspected of the commission of F
an offence under this Act is forwarded to a Magistrate under
sub-section (2) or sub-section (2A) of section 167 of the Code of
Criminal Procedure, 1973 (2 of 1974), such Magistrate may
authorise the detention of such person in such custody as he thinks
fit for a period not exceeding fifteen days in the whole where G
such Magistrate is a Judicial Magistrate and seven days in the
whole where such Magistrate is an Executive Magistrate:
Provided that in cases which are triable by the Special Court where
such Magistrate considers—
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740 SUPREME COURT REPORTS [2020] 12 S.C.R.

A (i) when such person is forwarded to him as aforesaid; or
(ii) upon or at any time before the expiry of the period of detention
authorised by him,
that the detention of such person is unnecessary, he shall order
such person to be forwarded to the Special Court having
B jurisdiction;
(c) the Special Court may exercise, in relation to the person
forwarded to it under clause (b), the same power which a
Magistrate having jurisdiction to try a case may exercise under
section 167 of the Code of Criminal Procedure, 1973 (2 of 1974),
C in relation to an accused person in such case who has been
forwarded to him under that section;
(d) a Special Court may, upon perusal of police report of the facts
constituting an offence under this Act or upon complaint made by
an officer of the Central Government or a State Government
D authorised in his behalf, take cognizance of that offence without
the accused being committed to it for trial.
(2) When trying an offence under this Act, a Special Court may
also try an offence other than an offence under this Act with
which the accused may, under the Code of Criminal Procedure,
E 1973 (2 of 1974), be charged at the same trial.
(3) Nothing contained in this section shall be deemed to affect the
special powers of the High Court regarding bail under section 439
of the Code of Criminal Procedure, 1973 (2 of 1974), and the
High Court may exercise such powers including the power under
F clause (b) of sub-section (1) of that section as if the reference to
“Magistrate” in that section included also a reference to a “Special
Court” constituted under section 36.
(4) In respect of persons accused of an offence punishable under
section 19 or section 24 or section 27A or for offences involving
G commercial quantity the references in sub-section (2) of section
167 of the Code of Criminal Procedure, 1973 (2 of 1974) thereof
to “ninety days”, where they occur, shall be construed as reference
to “one hundred and eighty days”:
Provided that, if it is not possible to complete the investigation
H within the said period of one hundred and eighty days, the Special
Court may extend the said period up to one year on the report of
TOFAN SINGH v. STATE OF TAMIL NADU 741
[R. F. NARIMAN, J.]

the Public Prosecutor indicating the progress of the investigation A
and the specific reasons for the detention of the accused beyond
the said period of one hundred and eighty days.
(5) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), the offences punishable under this
Act with imprisonment for a term of not more than three years B
may be tried summarily.”
137. What is clear, therefore, is that the designated officer under
section 53, invested with the powers of an officer in charge of a police
station, is to forward a police report stating the particulars that are
mentioned in section 173(2) CrPC. Because of the special provision C
contained in section 36A(1) of the NDPS Act, this police report is not
forwarded to a Magistrate, but only to a Special Court under section
36A(1)(d). Raj Kumar Karwal (supra), when it states that the designated
officer cannot submit a police report under section 36A(1)(d), but would
have to submit a “complaint” under section 190 of the CrPC misses the
importance of the non obstante clause contained in section 36A(1), D
which makes it clear that the drill of section 36A is to be followed
notwithstanding anything contained in section 2(d) of the CrPC. It is
obvious that section 36A(1)(d) is inconsistent with section 2(d) and section
190 of the CrPC and therefore, any complaint that has to be made can
only be made under section 36A(1)(d) to a Special Court, and not to a E
Magistrate under section 190. Shri Lekhi’s argument, that the procedure
under section 190 has been replaced only in part, the police report and
complaint procedure under section 190 not being displaced by section
36A(1)(d), cannot be accepted. Section 36A(1)(d) specifies a scheme
which is completely different from that contained in the CrPC. Whereas
under section 190 of the CrPC it is the Magistrate who takes cognizance F
of an offence, under section 36A(1)(d) it is only a Special Court that
takes cognizance of an offence under the NDPS Act. Secondly, the
“complaint” referred to in section 36A(1)(d) is not a private complaint
that is referred to in section 190(1)(a) of the CrPC, but can only be by
an authorised officer. Thirdly, section 190(1)(c) of the CrPC is G
conspicuous by its absence in section 36A(1)(d) of the NDPS Act – the
Special Court cannot, upon information received from any person other
than a police officer, or upon its own knowledge, take cognizance of an
offence under the NDPS Act. Further, a Special Court under section
36A is deemed to be a Court of Session, for the applicability of the
CrPC, under section 36C of the NDPS Act. A Court of Session under H
742 SUPREME COURT REPORTS [2020] 12 S.C.R.

A section 193 of the CrPC cannot take cognizance as a Court of original
jurisdiction unless the case has been committed to it by a Magistrate.
However, under section 36A(1)(d) of the NDPS Act, a Special Court
may take cognizance of an offence under the NDPS Act without the
accused being committed to it for trial. It is obvious, therefore, that in
view of section 36A(1)(d), nothing contained in section 190 of the CrPC
B
can be said to apply to a Special Court taking cognizance of an offence
under the NDPS Act.
138. Also, the officer designated under section 53 by the Central
Government or State Government to investigate offences under the NDPS
Act, need not be the same as the officer authorised by the Central
C Government or State Government under section 36A(1)(d) to make a
complaint before the Special Court. As a matter of fact, if the Central
Government is to invest an officer with the power of an officer in charge
of a police station under sub-section (1) of section 53, it can only do so
after consultation with the State Government, which requirement is
D conspicuous by its absence when the Central Government authorises an
officer under section 36A(1)(d). Also, both section 53(1) and (2) refer
to officers who belong to particular departments of Government. Section
36A(1)(d) does not restrict the officer that can be appointed for the
purpose of making a complaint to only an officer belonging to a department
of the Central/State Government. There can also be a situation where
E officers have been designated under section 53 by the Government, but
not so designated under section 36A(1)(d). It cannot be that in the absence
of the designation of an officer under section 36A(1)(d), the culmination
of an investigation by a designated officer under section 53 ends up by
being an exercise in futility.
F 139. Take the anomalous position that would arise as a result of
the judgment in Raj Kumar Karwal (supra). Suppose a designated
officer under section 53 of the NDPS Act investigates a particular case
and then arrives at the conclusion that no offence is made out. Unless
such officer can give a police report to the Special Court stating that no
G offence had been made out, and utilise the power contained in section
169 CrPC to release the accused, there would be a major lacuna in the
NDPS Act which cannot be filled.
140. A second anomaly also results from the judgment in Raj
Kumar Karwal (supra). Ordinarily, after the police report under section
H 173(2) of the CrPC is forwarded to the Magistrate (the Special Court in
TOFAN SINGH v. STATE OF TAMIL NADU 743
[R. F. NARIMAN, J.]

the NDPS Act), the police officer can undertake “further investigation” A
of the offence under section 173(8) of the CrPC. Section 173(8) reads
as follows:
“(8) Nothing in this section shall be deemed to preclude further
investigation in respect of an offence after a report under sub-
section (2) has been forwarded to the Magistrate and, where upon B
such investigation, the officer in charge of the police station obtains
further evidence, oral or documentary, he shall forward to the
Magistrate a further report or reports regarding such evidence in
the form prescribed; and the provisions of sub-sections (2) to (6)
shall, as far as may be, apply in relation to such report or reports
as they apply in relation to a report forwarded under sub-section C
(2).”
141. A three-Judge Bench of this Court in Vinubhai Haribhai
Malviya and Ors. v. State of Gujarat and Anr. 2019 SCC OnLine SC
1346 held that the power to further investigate an offence would be
available at all stages of the progress of a criminal case before the trial D
actually commences – see paragraph 49. If, as is contended by Shri
Lekhi, that the officer designated under section 53 can only file a
“complaint” and not a “police report”, then such officer would be denuded
of the power to further investigate the offence under section 173(8)
after such “complaint” is filed. This is because section 173(8) makes it E
clear that the further report can only be filed after a report under sub-
section (2) (i.e. a police report) has been forwarded to the Court.
However, a police officer, properly so-called, who may be investigating
an identical offence under the NDPS Act, would continue to have such
power, and may, until the trial commences, conduct further investigation
so that, as stated by this Court in Vinubhai (supra), an innocent person F
is not wrongly arraigned as an accused, or that a prima facie guilty
person is not so left out. Such anomaly – resulting in a violation of Article
14 of the Constitution of India – in that there is unequal treatment between
identically situated persons accused of an offence under the NDPS Act
solely due to the whether the investigating officer is a police officer or G
an officer designated under section 53 of the NDPS Act, would arise
only if the view in Raj Kumar Karwal (supra) is correct.
142. A third anomalous situation would arise, in that under section
36A(1)(a) of the NDPS Act, it is only offences which are punishable
with imprisonment for a term of more than three years that are exclusively H
744 SUPREME COURT REPORTS [2020] 12 S.C.R.

A triable by the Special Court. If, for example, an accused is tried for an
offence punishable under section 26 of the NDPS Act, he may be tried
by a Magistrate and not the Special Court. This being the case, the
special procedure provided in section 36A(1)(d) would not apply, the
result being that the section 53 officer who investigates this offence, will
then deliver a police report to the Magistrate under section 173 of the
B
CrPC. Absent any provision in the NDPS Act truncating the powers of
investigation for prevention and detection of crimes under the NDPS
Act, it is clear that an offence which is punishable for three years and
less can be investigated by officers designated under section 53, leading
to the filing of a police report.However, in view of Raj Kumar Karwal
C (supra), a section 53 officer investigating an offence under the NDPS
Actcan end up only by filing a complaint under section 36A(1)(d) of the
NDPS Act. Shri Lekhi’s only answer to this anomaly is that under section
36A(5) of the NDPS Act, such trials will follow a summary procedure,
which, in turn, will relate to a complaint where investigation is undertaken
by a narcotics officer. First and foremost, trial procedure is post-
D
investigation, and has nothing to do with the manner of investigation or
cognizance, as was submitted by Shri Lekhi himself. Secondly, even
assuming that the mode of trial has some relevance to this anomaly,
section 258 of the CrPC makes it clear that a summons case can be
instituted “otherwise than upon complaint”, which would obviously refer
E to a summons case being instituted on a police report – see John Thomas
v. Dr. K. Jagadeesan (2001) 6 SCC 30 (at paragraph 8).
143. Section 59 of the NDPS Actis an important pointer to when
cognizance of an offence can take place only on a complaint, and not by
way of a police report.By section 59(3), both in the case of an offence
F under section 59(1) [which is punishable for a term which may extend to
one year] or in the case of an offence under section 59(2) [which is
punishable for a term which shall not be less than10 years, but which
may extend to 20 years], no Court shall take cognizance of any offence
under section 59(1) or (2), except on a complaint in writing made with
the previous sanction of the Central Government, or, as the case may
G be, the State Government.Thus, under section 59, in either case i.e. in a
case where the trial takes place by a Magistrate for an offence under
section 59(1), or by the Special Court for an offence under section 59(2),
cognizance cannot be taken either by the Magistrate or the Special Court,
except on a complaint in writing. This provision is in terms markedly
H different from section 36A(1)(d), which provides two separate procedures
TOFAN SINGH v. STATE OF TAMIL NADU 745
[R. F. NARIMAN, J.]

for taking cognizance of offences made out under the NDPS Act. For A
all these reasons, it is clear that Raj Kumar Karwal (supra) cannot
possibly have laid down the law correctly.
144. At this juncture, it is important to state that we do not accept
the submission of Shri S.K. Jain that the “complaint” referred to in section
36A(1)(d) refers only to section 59 of the NDPS Act.A complaint can B
be made by a designated officer qua offences which arise under the
NDPS Act – it is not circumscribed by a provision which requires previous
sanction for an offence committed under section 58, as that would do
violence to the plain language of section 36A(1)(d).This argument is,
therefore, rejected. It is always open, therefore, to the designated officer,
designated this time for the purpose of filing a complaint under section C
36A(1)(d), to do so before the Special Court, which is a separate
procedure provided for under the special statute, in addition to the
procedure to be followed under section 53, as delineated hereinabove.
145. Shri Lekhi, however, argued that section 53 does not use the
expression “deemed” and that therefore, the power contained in section D
53(1) is only a truncated power to investigate which does not culminate
in a police report being filed.We cannot agree.The officer who is
designated under section 53 can, by a legal fiction, be deemed to be an
officer incharge of a police station, or can be given the powers of an
officer incharge of a police station to investigate the offences under the E
NDPS Act. Whether he is deemed as an officer incharge of a police
station, or given such powers, are only different sides of the same coin –
the aforesaid officer is not, in either circumstance, a police officer who
belongs to the police force of the State.To concede that a deeming fiction
would give full powers of investigation, including the filing of a final
report,to the designated officer,as against the powers of an officer F
incharge of a police station being given to a designated officer having
only limited powers to investigate, does not stand to reason, and would
be contrary to the express language and intendment of section 53(1).
146. Another argument of Shri Lekhi is that police officers or
policemen who belong to the police force are recognised in the NDPS G
Act as being separate and distinct from the officers of the Department
of Narcotics, etc. This argument has no legs on which to stand when it
is clear that the expression “police officers” does not only mean a police
officer who belongs to the State police force, but includes officers who
may belong to other departments, such as the Department of Excise in H
746 SUPREME COURT REPORTS [2020] 12 S.C.R.

A Raja Ram Jaiswal (supra), who are otherwise invested with all powers
of investigation so as to attract the provisions of section 25 of the Evidence
Act. Further, if the distinction between police officer as narrowly defined
and the officers of the Narcotics Control Bureau is something that is to
be stressed, then any interpretation which would whittle down the
fundamental rights of an accused based solely on the designation of a
B
particular officer, would fall foul of Article 14, as the classification
between the two types of officers would have no rational relation to the
object sought to be achieved by the statute in question, which is the
prevention and detection of crime.
147. What remains to be considered is Kanhaiyalal (supra). In
C this judgment, the question revolved around a conviction on the basis of
a confessional statement made under section 67 of the NDPS Act.This
Court, after setting out section 67, then drew a parallel between the
provisions ofsection 67 of the NDPS Act and sections 107 and 108 of
the Customs Act, 1962,section 32 of the Prevention of Terrorism Act,
D 2002 (“POTA”) and section 15 of the TADA – see paragraph 41. These
provisions are as follows:
Customs Act, 1962
“107. Power to examine persons.—Any officer of customs
empowered in this behalf by general or special order of the
E Principal Commissioner of Customs or Commissioner of Customs
may, during the course of any enquiry in connection with the
smuggling of any goods,—
(a) require any person to produce or deliver any document or
thing relevant to the enquiry;
F
(b) examine any person acquainted with the facts and
circumstances of the case.
108. Power to summon persons to give evidence and
produce documents.—(1) Any Gazetted Officer of customs
shall have power to summon any person whose attendance he
G
considers necessary either to give evidence or to produce a
document or any other thing in any inquiry which such officer is
making under this Act.
(2) A summons to produce documents or other things may be for
the production of certain specified documents or things or for the
H
TOFAN SINGH v. STATE OF TAMIL NADU 747
[R. F. NARIMAN, J.]

production of all documents or things of a certain description in A
the possession or under the control of the person summoned.
(3) All persons so summoned shall be bound to attend either in
person or by an authorised agent, as such officer may direct; and
all persons so summoned shall be bound to state the truth upon
any subject respecting which they are examined or make B
statements and produce such documents and other things as may
be required: Provided that the exemption under section 132 of the
Code of Civil Procedure, 1908 (5 of 1908), shall be applicable to
any requisition for attendance under this section.
(4) Every such inquiry as aforesaid shall be deemed to be a judicial C
proceeding within the meaning of section 193 and section 228 of
the Indian Penal Code, 1860 (45 of 1860).”
POTA
32. Certain confessions made to police officers to be taken
into consideration.- (1) Notwithstanding anything in the Code D
or in the Indian Evidence Act, 1872 (1 of 1872), but subject to the
provisions of this section, a confession made by a person before a
police officer not lower in rank than a Superintendent of Police
and recorded by such police officer either in writing or on any
mechanical or electronic device like cassettes, tapes or sound E
tracks from out of which sound or images can be reproduced,
shall be admissible in the trial of such person for an offence under
this Act or the rules made thereunder.
(2) A police officer shall, before recording any confession made
by a person under sub-section (1), explain to such person in writing F
that he is not bound to make a confession and that if he does so, it
may be used against him: Provided that where such person prefers
to remain silent, the police officer shall not compel or induce him
to make any confession.
(3) The confession shall be recorded in an atmosphere free from
G
threat or inducement and shall be in the same language in which
the person makes it.
(4) The person from whom a confession has been recorded under
sub-section (1), shall be produced before the Court of a Chief
Metropolitan Magistrate or the Court of a Chief Judicial Magistrate
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748 SUPREME COURT REPORTS [2020] 12 S.C.R.

A along with the original statement of confession, written or recorded
on mechanical or electronic device within forty-eight hours.
(5) The Chief Metropolitan Magistrate or the Chief Judicial
Magistrate, shall, record the statement, if any, made by the person
so produced and get his signature or thumb impression and if there
B is any complaint of torture, such person shall be directed to be
produced for medical examination before a Medical Officer not
lower in rank than an Assistant Civil Surgeon and thereafter, he
shall be sent to judicial custody.”
TADA
C “15. Certain confessions made to police officers to be taken
into consideration.—(1) Notwithstanding anything in the Code
or in the Indian Evidence Act, 1872 (1 of 1872), but subject to the
provisions of this section, a confession made by a person before a
police officer not lower in rank than a Superintendent of Police
D and recorded by such police officer either in writing or on any
mechanical device like cassettes, tapes or sound tracks from out
of which sounds or images can be reproduced, shall be admissible
in the trial of such person or co-accused, abettor or conspirator
for an offence under this Act or Rules made thereunder:

E Provided that co-accused, abettor or conspirator is charged and
tried in the same case together with the accused.
(2) The police officer shall, before recording any confession under
sub-section (1), explain to the person making it that he is not bound
to make a confession and that, if he does so, it may be used as
F evidence against him and such police officer shall not record any
such confession unless upon questioning the person making it, he
has reason to believe that it is being made voluntarily.”
148. Even a cursory look at the provisions of these statutes would
show that there is no parallel whatsoever between section 67 of the
NDPS Act and these provisions. In fact, section 108 of the Customs
G
Act, 1962 expressly states that the statements made therein are evidence,
as opposed to section 67 which is only a section which enables an officer
notified under section 42 to gather information in an enquiry in which
persons are “examined”.

H
TOFAN SINGH v. STATE OF TAMIL NADU 749
[R. F. NARIMAN, J.]

149. Equally, section 32 of POTA and section 15 of TADA are A
exceptions to section 25 of the Evidence Act in terms, unlike the provisions
of the NDPS Act. Both these Acts, vide section 32 and section 15
respectively, have non-obstante clauses by which the Evidence Act
has to give way to the provisions of these Acts. Pertinently, confessional
statements made before police officers under the provisions of the POTA
B
and TADA are made “admissible” in the trial of such person – see
section 32(1), POTA, and section 15(1), TADA. This is distinct from the
evidentiary value ofstatements made under the NDPS Act, wheresection
53A states that, in the circumstances mentioned therein, statements made
by a person beforeany officer empowered under section 53 shall merely
be “relevant” for the purpose of proving the truth of any facts contained C
in the said statement. Therefore, statements made before the officer
under section 53, even when “relevant” under section 53A, cannot,
without corroborating evidence, be the basis for the conviction of an
accused.
150. Also, when confessional statements are used under the TADA D
and POTA, they are used with several safeguards which are contained
in these sections themselves. So far as TADA is concerned, for example,
in Kartar Singh (supra) the following additional safeguards/
guidelineswere issued by the Court to ensure that the confession obtained
in the course of investigation by a police officer “is not tainted with any
vice but is in strict conformity with the well-recognised and accepted E
aesthetic principles and fundamental fairness”:
“263…(1) The confession should be recorded in a free atmosphere
in the same language in which the person is examined and as
narrated by him;
F
(2) The person from whom a confession has been recorded under
Section 15(1) of the Act, should be produced before the Chief
Metropolitan Magistrate or the Chief Judicial Magistrate to whom
the confession is required to be sent under Rule 15(5) along with
the original statement of confession, written or recorded on
mechanical device without unreasonable delay; G
(3) The Chief Metropolitan Magistrate or the Chief Judicial
Magistrate should scrupulously record the statement, if any, made
by the accused so produced and get his signature and in case of
any complaint of torture, the person should be directed to be
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750 SUPREME COURT REPORTS [2020] 12 S.C.R.

A produced for medical examination before a Medical Officer not
lower in rank than of an Assistant Civil Surgeon;
(4) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973, no police officer below the rank of an Assistant
Commissioner of Police in the Metropolitan cities and elsewhere
B of a Deputy Superintendent of Police or a police officer of
equivalent rank, should investigate any offence punishable under
this Act of 1987.
This is necessary in view of the drastic provisions of this Act.
More so when the Prevention of Corruption Act, 1988 under
C Section 17 and the Immoral Traffic Prevention Act, 1956 under
Section 13, authorise only a police officer of a specified rank to
investigate the offences under those specified Acts.
(5) The police officer if he is seeking the custody of any person
for pre-indictment or pre-trial interrogation from the judicial custody,
D must file an affidavit sworn by him explaining the reason not only
for such custody but also for the delay, if any, in seeking the police
custody;
(6) In case, the person, taken for interrogation, on receipt of the
statutory warning that he is not bound to make a confession and
E that if he does so, the said statement may be used against him as
evidence, asserts his right to silence, the police officer must respect
his right of assertion without making any compulsion to give a
statement of disclosure;
The Central Government may take note of these guidelines and
F incorporate them by appropriate amendments in the Act and the
Rules.”
151. Insofar as POTA is concerned, procedural safeguards while
recording confessions have been discussed by this Court in State (NCT
of Delhi) v. Navjot Sandhu (2005) 11 SCC 600 as follows:
G “Procedural safeguards in POTA and their impact on
confessions
156. As already noticed, POTA has absorbed into it the guidelines
spelt out in Kartar Singh and D.K. Basu in order to impart an
element of fairness and reasonableness into the stringent provisions
H of POTA in tune with the philosophy of Article 21 and allied
TOFAN SINGH v. STATE OF TAMIL NADU 751
[R. F. NARIMAN, J.]

constitutional provisions. These salutary safeguards are contained A
in Sections 32 and 52 of POTA. The peremptory prescriptions
embodied in Section 32 of POTA are:
(a) The police officer shall warn the accused that he is not bound
to make the confession and if he does so, it may be used against
him [vide sub-section (2)]. B
(b) The confession shall be recorded in an atmosphere free from
threat or inducement and shall be in the same language in which
the person makes it [vide sub-section (3)].
(c) The person from whom a confession has been recorded under
sub-section (1) shall be produced before the Chief Metropolitan C
Magistrate or Chief Judicial Magistrate along with the original
statement of confession, within forty-eight hours [vide sub-section
(4)].
(d) The CMM/CJM shall record the statement, if any, made by
the person so produced and get his signature and if there is any D
complaint of torture, such person shall be directed to be produced
for medical examination. After recording the statement and after
medical examination, if necessary, he shall be sent to judicial
custody [vide sub-section (5)].
The mandate of sub-sections (2) and (3) is not something new. E
Almost similar prescriptions were there under TADA also. In fact,
the fulfilment of such mandate is inherent in the process of
recording a confession by a statutory authority. What is necessarily
implicit is, perhaps, made explicit. But the notable safeguards which
were lacking in TADA are to be found in sub-sections (4) and F
(5).
157. The lofty purpose behind the mandate that the maker of the
confession shall be sent to judicial custody by the CJM before
whom he is produced is to provide an atmosphere in which he
would feel free to make a complaint against the police, if he so
G
wishes. The feeling that he will be free from the shackles of police
custody after production in court will minimise, if not remove, the
fear psychosis by which he may be gripped. The various
safeguards enshrined in Section 32 are meant to be strictly observed
as they relate to personal liberty of an individual. However, we
add a caveat here. The strict enforcement of the provision as to H
752 SUPREME COURT REPORTS [2020] 12 S.C.R.

A judicial remand and the invalidation of the confession merely on
the ground of its non-compliance may present some practical
difficulties at times. Situations may arise that even after the
confession is made by a person in custody, police custody may
still be required for the purpose of further investigation. Sending a
person to judicial custody at that stage may retard the investigation.
B
Sometimes, the further steps to be taken by the investigator with
the help of the accused may brook no delay. An attempt shall
however be made to harmonise this provision in Section 32(5)
with the powers of investigation available to the police. At the
same time, it needs to be emphasised that the obligation to send
C the confession maker to judicial custody cannot be lightly
disregarded. Police custody cannot be given on the mere asking
by the police. It shall be remembered that sending a person who
has made the confession to judicial custody after he is produced
before the CJM is the normal rule and this procedural safeguard
should be given its due primacy. The CJM should be satisfied that
D
it is absolutely necessary that the confession maker shall be
restored to police custody for any special reason. Such a course
of sending him back to police custody could only be done in
exceptional cases after due application of mind. Most often, sending
such person to judicial custody in compliance with Section 32(5)
E soon after the proceedings are recorded by the CJM subject to
the consideration of the application by the police after a few days
may not make material difference to the further investigation.
The CJM has a duty to consider whether the application is only a
ruse to get back the person concerned to police custody in case
he disputes the confession or it is an application made bona fide in
F
view of the need and urgency involved. We are therefore of the
view that the non-compliance with the judicial custody requirement
does not perse vitiate the confession, though its non-compliance
should be one of the important factors that must be borne in mind
in testing the confession.
G 158. These provisions of Section 32, which are conceived in the
interest of the accused, will go a long way to screen and exclude
confessions, which appear to be involuntary. The requirements
and safeguards laid down in sub-sections (2) to (5) are an integral
part of the scheme providing for admissibility of confession made
H to the police officer. The breach of any one of these requirements
TOFAN SINGH v. STATE OF TAMIL NADU 753
[R. F. NARIMAN, J.]

would have a vital bearing on the admissibility and evidentiary A
value of the confession recorded under Section 32(1) and may
even inflict a fatal blow on such confession. We have another set
of procedural safeguards laid down in Section 52 of POTA which
are modelled on the guidelines envisaged by D.K. Basu [(1997) 1
SCC 416]. Section 52 runs as under:
B
“52. (1) Where a police officer arrests a person, he shall
prepare a custody memo of the person arrested.
(2) The person arrested shall be informed of his right to consult
a legal practitioner as soon as he is brought to the police
station. C
(3) Whenever any person is arrested, information of his arrest
shall be immediately communicated by the police officer to a
family member or in his absence to a relative of such person
by telegram, telephone or by any other means and this fact
shall be recorded by the police officer under the signature of D
the person arrested.
(4) The person arrested shall be permitted to meet the legal
practitioner representing him during the course of
interrogation of the accused person:
Provided that nothing in this sub-section shall entitle the legal E
practitioner to remain present throughout the period of
interrogation.”
Sub-sections (2) and (4) as well as sub-section (3) stem from the
guarantees enshrined in Articles 21 and 22(1) of the Constitution.
Article 22(1) enjoins that no person who is arrested shall be F
detained in custody without being informed, as soon as may be, of
the grounds for such arrest nor shall he be denied the right to
consult, and to be defended by, a legal practitioner of his choice.
They are also meant to effectuate the commandment of Article
20(3) that no person accused of any offence shall be compelled
G
to be a witness against himself.”
152. Thus, to arrive at the conclusion that a confessional statement
made before an officer designated under section 42 or section 53 can be
the basis to convict a person under the NDPS Act, without any non
obstante clause doing away with section 25 of the Evidence Act, and
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754 SUPREME COURT REPORTS [2020] 12 S.C.R.

A without any safeguards, would be a direct infringement of the
constitutional guarantees contained in Articles 14, 20(3) and 21 of the
Constitution of India.
153. The judgment in Kanhaiyalal (supra) then goes on to follow
Raj Kumar Karwal (supra) in paragraphs 44 and 45. For the reasons
B stated by us hereinabove, both these judgments do not state the law
correctly, and are thus overruled by us. Other judgments that expressly
refer to and rely upon these judgments, or upon the principles laid down
by these judgments, also stand overruled for the reasons given by us.
154. On the other hand, for the reasons given by us in this judgment,
C the judgments of Noor Aga (supra) and Nirmal Singh Pehlwan v.
Inspector, Customs (2011) 12 SCC 298 are correct in law.
155. We answer the reference by stating:
(i) That the officers who are invested with powers under section
53 of the NDPS Act are “police officers” within the meaning
D 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.
E (ii) 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.
156. I.A. No. 87826 of 2020 for intervention is dismissed. I.A.
No. 81061 of 2020 in Criminal Appeal No. 433 of 2014 is dismissed as
F withdrawn, with liberty to the applicant to avail of such remedies as are
available in law.
157. These Appeals and Special Leave Petitions are now sent
back to Division Benches of this Court to be disposed of on merits, in the
light of this judgment.
G INDIRA BANERJEE, J.
1. I have gone through the draft judgment prepared by my
esteemed brother, Rohinton F. Nariman, J. but have not been able to
persuade myself to agree that the officers invested with powers under
Section 53 of the Narcotic Drugs and Psychotropic Substances Act
H
TOFAN SINGH v. STATE OF TAMIL NADU 755
[INDIRA BANERJEE, J.]

(NDPS Act) are police officers within the meaning of Section 25 of the A
indian Evidence Act, 1872 or that any confessional statement made to
them would be barred under the provisions of Section 25 or 26 of the
Evidence Act. In my view, any statement made or document or other
thing given to an authorised officer referred to in Section 42 of the NDPS
Act or an officer invested under Section 53 with the powers of an Officer
B
in Charge for the purpose of investigation of an offence under the said
Act, in the course of any inquiry, investigation or other proceeding, may
be tendered in evidence in the trial of an offence under the said Act and
proved in accordance with law. I am also unable to agree that a statement
recorded under Section 67 of the NDPS Act cannot be used against an
accused offender in the trial of an offence under the NDPS Act. C
2. The illicit production, distribution, sale and consumption of drugs
and psychotropic substances, is a crime of multi-dimensional magnitude,
that imposes a staggering burden on the society. In an Article “Narcotic
Aggression and Operation Counter Attack” published in the Mainstream
dated March 7, 1992, V.R. Krishna Iyer, J. said:- D
“Religion is opium of the people, but today opium is the
religion of the people, and like God, is omnipresent,
omnipotent and omniscient. Alas! Opium makes you slowly ill
and eventually kills, makes you a new criminal to rob and
buy the stuff, tempts you to smuggle at risk to become rich E
quick, makes you invisible trafficker of psychotropic
substances and operator of a parallel international illicit
currency and sub rosa evangelist mafia culture. Drug business
makes you if not killed betimes, the possessor of pleasure,
power and empire. What noxious menace is this most
inescapable evil that benumbs the soul of student, teacher, F
doctor, politician, artists and professional, and corrupts
innocent millions of youth and promising intellectuals
everywhere.”
3. In the words of Krishna Iyer, J., “the global scenario in its
sombre macabre, devouring delinquency, is dominated by drug abuse G
and narcotic trade. Trafficking in drugs and psychotropic substances is
not any local or regional crime confined only to India and third-world
countries, but is a worldwide phenomenon. All nations including India,
had huge drug abuse as a threat to the survival of human beings.”
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756 SUPREME COURT REPORTS [2020] 12 S.C.R.

A 4. Illicit drug trafficking is an organised crime, highly sophisticated
and complex. This illicit traffic, cleverly carried out by hardened criminals
with dexterity and skill, not only violates national drug laws and
international conventions, but also involves many other criminal activities,
including racketeering, conspiracy, bribery and corruption of public
officials, tax evasion, banking law violations, illegal money transfers,
B
import/export violations, crimes of violence and terrorism.
5. Narcotics are often supplied for money and also in exchange
for weapons. There are numerous drug trafficking mafia yielding,
immense power in various regions of the world, including India. The
far-reaching consequences of illicit drug trade, even threatens the integrity
C and stability of governments and renders law enforcement action
vulnerable.
6. Considering the huge profits derived by drug barons from
rampant consumption of opium and other narcotic drugs, tycoons of the
drug cartels, who have international links, go to any extent, to exploit and
D manipulate unhealthy economic conditions, as well as corruption and
weaknesses in the administration, to push drugs into the society, in
complete disregard of the health, morality and well-being of the people.
7. India has been directly engulfed in drug trafficking by virtue of
its geographical location, flanked on three sides by illicit narcotic drug
E production regions. To the West lies the Golden Crescent, comprising
Iran, Afghanistan and Pakistan, which illegally produce a huge volume
of opium, converted into heroin in illicit factories. In the East, the Golden
Triangle is made up of Burma, Thailand and Laos, which produce
thousands of tons of opium, cultivated over thousands of hectares of
F land. The third flank is along the 1,568 km border with Nepal in the
North. The Himalayan foot hills and the Terrai regions of Nepal produce
inter alia ‘cannabis restin’. The long land border with Pakistan and a
network of airports and seaports linking India to other countries has
facilitated illegal trafficking in drugs.

G 8. India is not only a transit point for the export of narcotic drugs
from the regions surrounding it, to Western and other countries. India
also provides a lucrative market for narcotic drugs and psychotropic
substances. That apart, there is widespread illicit cultivation of plants
yielding narcotic drugs, like opium and ganja in India.

H
TOFAN SINGH v. STATE OF TAMIL NADU 757
[INDIRA BANERJEE, J.]

9. Illicit drugs from the Golden Crescent, the Golden Triangle, as A
well as from Nepal and China, are smuggled into India for consumption
and sale and also onward transmission to other countries. Illicit drugs
find their way, inter alia, into metropolitan cities of India like Delhi,
Mumbai, Bengaluru etc. The amount of illicit narcotic drugs that are
seized in India by law enforcement authorities, only constitute the tip of
B
the iceberg.
10. The menace of illicit, manufacture and sale of narcotic drugs
and psychotropic substances has been of international concern. As early
as in July 1906, Reverend Brent wrote a letter to President Roosevelt
expressing his anxiety over the increasing illicit traffic in opium and the
necessity of curbing the same. That was followed by a series of meetings C
amongst various nations of the world, at regular intervals, leading to the
enactment of several Drug Laws in those nations.
11. An International Convention was held at Hague in 1912, to
inter alia regulate the preparation and sale of raw and prepared opium
and other derivatives like Morphine and Cocaine etc. However, the D
enforcement of the said Convention was kept in abeyance for nearly six
years, presumably due to the first World War, and came into force in the
middle of 1919.
12. In 1920-1923, the Council of the League of Nations, entrusted
the control, manufacture, trade and traffic in drugs inter alia to the E
Assembly and Council of the League of Nations, the Advisory Committee
on the subject relating to traffic in opium and other dangerous drugs, the
Health Committee of the League of Nations and its Supervisory Body.
13. The second International Opium Convention, held in Greece
in 1925 led to the Geneva Opium Agreement, 1925 which came into F
force in 1926. The Geneva Opium Agreement made elaborate
recommendations in respect, of the problems relating to intake and illicit
traffic of opium. The next Convention was held at Geneva in 1931 for
limiting the manufacture as well as regulating the distribution of Narcotic
drugs. In 1936, another Convention for the suppression of illicit traffic in G
dangerous drugs was held in Geneva. The Resolutions adopted in the
convention came into force in 1939.
14. In 1946, the United Nations established the Commission for
Narcotic Drugs as a functional Commission of the Economic and the
Social Council. In 1953, the Commission formulated Protocols for limiting
H
758 SUPREME COURT REPORTS [2020] 12 S.C.R.

A and regulating the cultivation of opium plant, international whole-sale
trade in opium and the use of opium.
15. In 1961 a Single Convention of Narcotic Drugs was adopted
by the United Nations with the objects of: -
1. Codification of the existing multilateral Convention on drugs.
B
2. Simplification of the International Control Machinery.
3. Extension of the Control System to the cultivation of other
natural products like Cannabis, Resin and Coca leaves in addition
to opium and poppy straw and
C 4. Adoption of appropriate measures for the treatment and
rehabilitation of drug addicts.
16. Schedules I to IV of the said Convention included almost all
drugs and Narcotics substances, as well as preparations thereof, which
were then in use. The Convention was signed in New York on March
D 31, 1961 and came into force on December 13, 1964.
17. A Convention of Psychotropic Substances was held at Vienna
from 11th January, 1971 to 21st February, 1971. The Resolutions adopted
in the Convention of Psychotropic Drugs, which came into force with
effect from August, 1971, contemplated restriction of the use and
E preparation of psychotropic substances. It was also resolved that stringent
penal provisions be made to control the use of psychotropic substances.
18. In 1981, the General Assembly of the United Nations adopted
an International Drug Abuse Control Strategy and a five-year Action
Plan for 1982-86. In 1984 the U.N. General Assembly adopted the
F declaration on the Control of Drug Trafficking and Drug Abuse. Again,
there was an International Conference on drug abuse and illicit trafficking
held in Vienna from June 17 to June 26, 1987. The principal document
prepared before the Conference by the United Nations was a
comprehensive multi-disciplinary plan of future activities to control drug
abuse.
G
19. The United Nations Conference held at Vienna from 25 th
November to 20th December, 1988 expressed concern at the magnitude
of and rising trends in the illicit production of, demand for and traffic in
Narcotic Drugs and Psychotropic Substances all over the world and

H
TOFAN SINGH v. STATE OF TAMIL NADU 759
[INDIRA BANERJEE, J.]

therefore adopted the Convention against illicit traffic in Narcotic Drugs A
and Psychotropic Substances, 1988. The purpose of the Convention
was as follows:
“1. The purpose of this Convention is to promote co-operation
among the parties so that they may address more effectively
the various aspects of illicit traffic in narcotic drugs and B
psychotropic substances having an international dimension.
In carrying out their obligations under the Convention, the
parties shall take necessary measure, including legislative
and administrative measures, in conformity with the
fundamental provisions of their respective domestic legislative
systems. C

2. The parties shall carry out their obligations under this
Convention in a manner consistent with the principles of
sovereign equality and territorial integrity of States and affairs
of other States.
D
3. A Party shall not undertake in the territory of another Party
the exercise of jurisdiction and performance of functions
which are exclusively reserved for the authorities of that other
party by its domestic law”.
20. The Resolutions passed in the said Convention pertained to E
offences and sanctions relating to illicit trafficking in narcotic drugs and
psychotropic substances, exercise of Jurisdiction, confiscation, extradition,
mutual legal assistance, transfer of proceedings, co-operation and training,
international cooperation and assistance, controlled delivery, enactment
of provisions to prevent diversion of trade, materials and equipment for
illicit production of narcotic drugs and psychotropic substances, measures F
to eradicate illicit cultivation of narcotic plants and elimination of illicit
demand for narcotic drugs and psychotropic substances.
21. India participated in many of the international conferences
and/or conventions. India had participated in the Second International
Opium Conference at Geneva on 17th November, 1924 and again on G
19th February, 1925, and adopted the convention relating to dangerous
drugs. Being a signatory to the said Convention, which resolved to take
further measure to suppress the contraband traffic in and abuse of
Dangerous Drugs especially those derived from Opium, Indian Hemp
and Coca Leaf, the Indian Legislature passed the Dangerous Drugs
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760 SUPREME COURT REPORTS [2020] 12 S.C.R.

A Act, 1930 to control certain operations relating to dangerous drugs and
provide for increased penalties for the offences relating to such
operations. The said Act was amended from time to time by various
legislations.
22. It may be pertinent to point out that, even before the enactment
B of the Dangerous Drugs Act of 1930, there was statutory control over
Narcotic Drugs in India through enactments like the Opium Acts of
1857 and 1878.
23. With the developments in the field of illicit drug traffic and
drug abuse at the National and International level, many flaws were
C noticed in the laws. It was realised that the provisions of the Acts were
not stringent enough to effectively control drug abuse and related crimes
like preparation, transport, sale etc. of narcotic drugs and psychotropic
substances. The laws in existence were not a deterrent to illicit business
in narcotic drugs and psychotropic substances. An urgent need was,
therefore, felt for introducing a comprehensive legislation on Narcotic
D Drugs and Psychotropic Substances.
24. The NDPS Act has been enacted, inter alia, to implement
International Conventions relating to narcotic drugs and psychotropic
substances to which India has been a party and also to implement the
Constitutional policy enshrined in Article 47 of the Constitution of India,
E which casts a duty upon the State to improve public health and also to
prohibit consumption, except for medicinal purposes, of drugs which are
injurious to health.
25. As stated in its Preamble, the NDPS Act has been enacted to
consolidate and amend the law relating to narcotic drugs, to make stringent
F provisions for the control and regulation of operations relating to narcotic
drugs and psychotropic substances, to provide for the forfeiture of
property derived from, or used in, illicit traffic in narcotic drugs and
psychotropic substances, to implement the provisions of the International
Conventions on Narcotic Drugs and Psychotropic Substances and for
G matters connected therewith. It is not a penal statute like the Indian
Penal Code (IPC).
26. The Statement of Objects and Reasons for the NDPS Act as
laid before Parliament is as under:
“The statutory control over narcotic drugs is exercised in India
H through a number of Central and State enactments. The
TOFAN SINGH v. STATE OF TAMIL NADU 761
[INDIRA BANERJEE, J.]

Principal Central Acts, namely, the Opium Act, 1857, the A
Opium Act, 1878 and the Dangerous Drugs Act, 1930 were
enacted a long time ago. With the passage of time and the
developments in the field of illicit drug traffic and drug abuse
at national and international level many deficiencies in the
existing laws have come to notice, some of which are indicated
B
below:
(i) The scheme of penalties under the present Acts is not
sufficiently deterrent to meet the challenge of well organised
gangs of smugglers. The Dangerous Drugs Act, 1930 provides
for a maximum term of imprisonment of three years with or
without fine and four years imprisonment with or without fine C
with repeat offences. Further, no minimum punishment is
prescribed in the present laws, as a result of which drug
traffickers have been sometimes let off by the courts with
nominal punishment. The country has for the last few years
been increasingly facing the problem of transit traffic of drugs D
coming mainly from some of our neighbouring countries and
destined mainly to western countries.
(ii) The existing central laws do not provide for investing the
officers of a number of important central enforcement agencies
like narcotics, customs, central excise etc., with the power of E
investigation of offences under the said laws.
(iii) Since the enactment of the aforesaid three Central Acts a
vast body of international law in the field of narcotics control
has evolved through various international treaties and
protocols. The Government of India has been a party to these F
treaties and conventions which entail several obligations
which are not covered or are only partly covered by the present
Acts.
(iv) During the recent years new drugs of addiction which
have come to be known as psychotropic substances have G
appeared on the scene and posed serious problems to national
governments. There is no comprehensive law to enable
exercise of control over psychotropic substances in India in
the manner as envisaged in the Convention on Psychotropic
Substances, 1971 to which also India has acceded.”
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762 SUPREME COURT REPORTS [2020] 12 S.C.R.

A 27. The NDPS Act was prompted by an urgent need to enact a
comprehensive legislation to, inter alia, consolidate and amend the
existing laws relating to narcotic drugs and psychotropic substances,
strengthen the existing controls over drug abuses, prevent the funding of
illicit trade in narcotic drugs and psychotropic substances enhance the
penalties particularly for trafficking offences, make provisions for
B
exercising effective control over psychotropic substances and to make
provisions for the implementation of international conventions relating to
narcotic drugs and psychotropic substances, which India has endorsed.
The NDPS Act also envisages the Constitution of a National Fund for
the control of drug abuse.
C 28. There are two main enactments on the subject, the NDPS
Act and the Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988, hereinafter refered to as the 1988
Act.
29. The NDPS Act consolidated and amended the existing laws
D relating to narcotic drugs, strengthened the existing control over drug
abuse, considerably enhanced the punishments particularly for trafficking
offences, made provision for exercising effective control over
psychotropic substances and provided for the implementation of the then
existing international conventions.
E 30. The NDPS Act with Chapters I to VIII, comprises 83 sections.
Chapter I contains the short title of the Act, definitions of various words
and expressions used therein and a provision enabling addition to and
deletion from the list of psychotropic substances.
31. Chapter II of the NDPS Act enables the Central Government
F to take measures for preventing and combating the abuse of narcotic
drugs and psychotropic substances and the illicit traffic therein and also
empowers the Central and/or State Government to appoint inter alia a
Commission, a Consultative Committee, other authorities and officers
for the purposes of the said Act. Chapter IIA inter alia provides for
G the constitution of a National Fund for control of drug abuse.
32. In exercise of power conferred by Section 4(3) of the NDPS
Act, the Central Government constituted the Narcotics Control Bureau,
hereinafter referred to as NCB. The officers of the NCB are not police
officers, but are from different departments of the Government, including
H
TOFAN SINGH v. STATE OF TAMIL NADU 763
[INDIRA BANERJEE, J.]

officers of the Directorate of Revenue Intelligence, Customs Officers A
and Central Excise Officers.
33. The Narcotics Control Bureau (NCB)has been combating drug
trafficking in India. Moreover, in view of India’s commitment to
international cooperation for suppression of drug trafficking, NCB has
also been playing a key role in assisting authorities in foreign countries to B
suppress illicit drug trade.
34. Chapter III of the NDPS Act comprising Sections 8 to 14
prohibits and/or controls and/or regulates certain operations and activities
relating to narcotic drugs and psychotropic substance, and also relating
to property derived from an offence under the NDPS Act, as well as C
property including any building, warehouse or vehicle used in connection
with an offence under the NDPS Act.
35. Sections 15 to 32B in Chapter IV provide for punishment for
contraventions in relation to poppy straw, coca plant and coca leaves,
prepared opium, opium poppy and opium, cannabis plant, manufactured D
drugs and preparations, psychotropic substances, illegal import or export
of narcotic drugs and psychotropic substances, external dealings in
narcotic drug and psychotropic substances, etc.
36. Section 35(1) of the NDPS Act provides that in “any
prosecution for an offence under this Act which requires a culpable E
mental state of the accused, the court shall presume the existence of
such mental state but it shall be a defence for the accused to prove
the fact that he had no such mental state with respect to the act
charged as an offence in that prosecution.” As per the Explanation
to Section 35(1) “culpable mental state includes intention motive,
knowledge of a fact and belief in, or reason to believe, a fact.” F
Section 35(2) provides that for the purpose of Section 35 a fact is said
to be proved only when the court believes it to exist beyond a
reasonable doubt and not merely when its existence is established
by a preponderance of probability.”
37. The constitutional vires of Section 35 of the NDPS Act has G
been upheld by this Court in Noor Aga v. State of Punjab and Anr.3.
This Court held:-
"23. Section 35 of the Act provides for presumption of culpable
3
(2008) 16 SCC 417 H
764 SUPREME COURT REPORTS [2020] 12 S.C.R.

A mental state. It also provides that an accused may prove that
he had no such mental state with respect to the act charged
as an offence under the prosecution. Section 54 of the Act
places the burden of proof on the accused as regards
possession of the contraband to account for the same
satisfactorily.
B
xxx xxx xxx
34. The Act contains draconian provisions. It must, however,
be borne in mind that the Act was enacted having regard to
the mandate contained in International Conventions on
C Narcotic Drugs and Psychotropic Substances. Only because
the burden of proof under certain circumstances is placed on
the accused, the same, by itself, in our opinion, would not
render the impugned provisions unconstitutional.
35. A right to be presumed innocent, subject to the
D establishment of certain foundational facts and burden of
proof, to a certain extent, can be placed on an accused. It
must be construed having regard to the other international
conventions and having regard to the fact that it has been
held to be constitutional. Thus, a statute may be constitutional
but a prosecution thereunder may not be held to be one.
E Indisputably, civil liberties and rights of citizens must be
upheld.
xxx xxx xxx
55. The provisions of Section 35 of the Act as also Section 54
F thereof, in view of the decisions of this Court, therefore, cannot
be said to be ex facie unconstitutional. We would, however,
keeping in view the principles noticed hereinbefore examine
the effect thereof, vis-‘-vis the question as to whether the
prosecution has been able to discharge its burden hereinafter."
38. Section 36 of the NDPS Act provides for the constitution of
G
Special Courts for speedy trial of offences under the said Act. Section
36A(1) inter alia provides that notwithstanding anything contained in
the Code of Criminal Procedure, 1973 all offences under the NDPS
Act, which are punishable with imprisonment for a term of more than
three years are to be triable only by the Special Court constituted under
H the said Act.
TOFAN SINGH v. STATE OF TAMIL NADU 765
[INDIRA BANERJEE, J.]

39. Section 36A(5) of the NDPS Act provides that notwithstanding A
anything contained in the Code of Criminal Procedure, 1973, the offences
punishable under NDPS Act, with imprisonment for a term of not more
than three years, may be tried summarily.
40. Chapter V of the NDPS Act comprising Sections 41 to 68
prescribes the procedures to be followed by the officers appointed under B
the NDPS Act, for exercise of the powers of entry, search, seizure
arrest, disposal of seized materials, inquiry and investigation for
implementation of the provisions of the said Act.
41. Chapter VA consisting of 25 sections, inserted in the NDPS
Act by the NDPS Amendment Act, 1988, provides for forfeiture of C
income, earnings or assets derived from or attributable to the
contravention of the NDPS Act.
42. Chapter VI being the last chapter contains miscellaneous
provisions including Sections 79, 80 and 81 set out hereinbelow:-
“79. Application of the Customs Act, 1962.—All prohibitions D
and restrictions imposed by or under this Act on the import
into India, the export from India and transhipment of narcotic
drugs and psychotropic substances shall be deemed to be
prohibitions and restrictions imposed by or under the Customs
Act, 1962 (52 of 1962) and the provisions of that Act shall E
apply accordingly: Provided that, where the doing of anything
is an offence punishable under that Act and under this Act,
nothing in that Act or in this section shall prevent the offender
from being punished under this Act.
80. Application of the Drugs and Cosmetics Act, 1940 not F
barred.—The provisions of this Act or the rules made
thereunder shall be in addition to, and not in derogation of,
the Drugs and Cosmetics Act, 1940 (23 of 1940) or the rules
made thereunder.
81. Saving of State and special laws.—Nothing in this Act or
G
in the rules made thereunder shall affect the validity of any
Provincial Act or an Act of any State Legislature for the time
being in force, or of any rule made thereunder which imposes
any restriction or provides for a punishment not imposed by
or provided for under this Act or imposes a restriction or
provides for a punishment greater in degree than a H
766 SUPREME COURT REPORTS [2020] 12 S.C.R.

A corresponding restriction imposed by or a corresponding
punishment provided for by or under this Act for the cultivation
of cannabis plant or consumption of, or traffic in, any
narcotic drug or psychotropic substance within India.”
43. The scheme of the NDPS Act makes it patently clear that it
B essentially makes provisions, as are deemed necessary, for preventing
and combating the abuse of and illicit trade and trafficking in narcotic
drugs and psychotropic substances, including the financing of (i) the
cultivation of coca plant; (ii) cultivation of opium poppy or any cannabis
plant; (iii) the production, manufacture, possession, sale, purchase,
transportation, warehousing, concealment, use, consumption, import inter-
C State, export inter-State, import into India, export from India or
transhipment of narcotic drugs or psychotropic substances; (iv) dealing
in any activities in narcotic drugs or psychotropic substances other than
those referred to above or (v) the hiring or letting out any premises for
the carrying on of any of the activities referred to above.
D 44. The NDPS Act has been amended by the NDPS (Amendment)
Act, 1988, to provide for some stringent measures, including provision
for death penalty in certain cases of commission of offence after previous
conviction and most of the offences under the Act have been made non-
bailable. It also introduced a new Chapter V A to the NDPS Act, based
E on the Vienna Convention of 1988, which provided for forfeiture of
property derived from or used in illicit traffic.
45. The object of the aforesaid amendment as stated in the Objects
and Reasons of the NDPS (Amendment) Act, 1988 placed before
Parliament is as follows:-
F “6. Statement of objects and reasons of the Narcotic Drugs
and Psychotropic Substances (Amendment) Act, 1988.- (1)
In recent years, India has been facing a problem of transit
traffic in illicit drugs.The spill over from such traffic has
caused problems of abuse and additction. The Narcotic Drugs
G and Psychotropic Substances Act, 1985 provides deterrent
punishments for drug trafficing offences. Even though the
major offences are non-bailable by virtue of the level of
punishments, on technical grounds, drug offenders were being
released on bail. In the light of certain difficulties faced in
the enforcement of the Narcotic Drugs and Psychotropic
H
TOFAN SINGH v. STATE OF TAMIL NADU 767
[INDIRA BANERJEE, J.]

Substances Act, 1985, the need to amend the law to further A
strengthen it, has been felt.
(2) A Cabinet Sub-Committee, which was constituted for
combating drug traffic and preventing drug abuse, also
made a number of recommendations of the Cabinet Sub-
Committee and the working of the Narcotic Drugs and B
Psychotroipc Substances Act, in the last three years, it is
proposed to amend the said Act.
The amendments, inter alia, provide for the following :
(i) to constitute a National Fund for control of Drugs abuse to
meet the expenditure incurred in connection with the measures C
for combating illicit traffic and preventing drug abuse;
(ii) to bring certain controlled substances, which are used for
manufacture of Narcotic drugs and Psychotropic Substances,
under the ambit of Narcotic Drugs and Psychotropic
Substances Act and to provide deterrent punishment for violation D
thereof;
(iii) to provide that no sentence awarded under the Act shall
be suspended, remitted or commuted;
(iv) to provide that no sentence awarded under the Act shall
E
be suspended, remitted or commuted;
(iv) to provide for pre-trial disposal of seized drugs;
(v) to provide death penalty on second conviction in respect of
specified quantities of certain drugs;
(vi) to provide for forfeiture of property and detailed procedure F
relating to the same; and
(vii) to provide that the offences shall be cognizable and non-
bailable.
(3) The Bill seeks to achieve the above objectives.” G
46. The NDPS Act was further amended by the NDPS
(Amendment) Act, 2001, to rationalize the sentence structure to ensure
that drug traffickers who traffic in significant quantities of drugs are
punished with deterrent sentences, but addicts and others who commit
less serious offences, are sentenced to less severe punishment. There
H
768 SUPREME COURT REPORTS [2020] 12 S.C.R.

A were further amendments by the NDPS (Amendment) Act 2014 and
the Finance Act 2016 (28 of 2016).
47. However, despite an elaborate statutory framework, the NDPS
Act is not being effectively implemented. It is difficult to check the
expanding network of drug-traffickers. To evade the enforcement
B authorities, the drug traffickers take recourse to the most ingenious and
devious ways of trading illicitly in narcotic drugs and psychotropic
substances. Investigations are often half-hearted, for various reasons
including underhand deals.
48. Illicit business in and consumption of narcotic drugs and
C psychotropic substances is endangering the social and economic stability
of India and the developing countries, adversely affecting the health of
the people, causing malnutrition related ailments, causing a spurt in crimes
and increase in the spread of communicable diseases such as AIDS
(Acquired Immuno Deficiency Syndrome), caused by sharing of needles
for administration of narcotic drugs. The lure of money, vulnerability of
D adolescents, poverty and other facets of socio-economic deprivations
aggravate this menace and provide sustenance to the racketeers involved
in this flourishing illicit business.
49. The Law Commission of India, in its 155th Report on Narcotic
Drugs and Psychotropic Substances Act, 1985, submitted in July, 1997,
E inter alia, stated: -
“The crimes are generally of two kinds:
(a) Traditional crimes affecting individual persons, like
murder, theft, assault, etc.;
F (b) White-Collar Crimes or Socio Economic Crimes affecting
the public at large like smuggling, hoardings, adulteration,
illicit trafficking and sale of narcotic drugs and psychotropic
substances etc. White-collar crimes are of recent origin and
may be defined as all illegal acts committed by unlawful means
— the purpose being to obtain money or property or business
G
or personal gain or profit. Such crimes are committed by the
organised gangs having influence. Some of the salient features
of the white-collar crimes are as under:
(a) there is no social sanction against such white-collar
crimes;
H
TOFAN SINGH v. STATE OF TAMIL NADU 769
[INDIRA BANERJEE, J.]

(b) these crimes are committed by organised gangs A
equipped with most modern technology;
(c) there is generally a nexus between the politicians, law
enforcing agencies and the offenders indulging directly
in such crimes;
(d) there is no organised public opinion against such B
crimes; and
(e) the traditional crimes are isolated crimes, while the
white-collar crimes are part and parcel of the society.
1.3. Drug Trafficking and illicit use of Narcotic Drugs and C
Psychotropic Substances.—The genesis and development of
the Indian drug trafficking scenario are closely connected
with the strategic and geographical location of India which
has massive inflow of heroin and hashish from across the Indo-
Pak border originating from “Golden Crescent” comprising
of Iran, Afghanistan and Pakistan which is one of the major D
illicit drug supplying areas of the world. On the North Eastern
side of the country is the “Gold Triangle” comprising of
Burma, Loas and Thailand which is again one of the largest
sources of illicit opium in the world. Nepal also is a traditional
source of cannabis, both herbal and resinous. Cannabis is E
also of wide growth in some states of India. As far as illicit
drug trafficking from and through India is concerned, these
three sources of supply have been instrumental in drug
trafficking. Prior to the enactment of the Narcotic Drugs and
Psychotropic Substances Act, 1985, the statutory control over
narcotic drugs was exercised in India through a number of F
Central and State enactments. The principal Central Acts were
(a) the Opium Act, 1857, (b) the Opium Act, 1878 and (c) the
Dangerous Drugs Act, 1930.”
50. Socio-economic crimes such as trafficking in narcotic drugs
and psychotropic substances, food adulteration, black marketing, G
profiteering and hoarding, smuggling, tax evasion and the like, which are
“white collar crimes” affect the health and material welfare of the
community as a whole, as against that of an individual victim, and are, by
and large, committed not by disadvantaged low class people, but by very
affluent and immensely powerful people, who often exploit the less
H
770 SUPREME COURT REPORTS [2020] 12 S.C.R.

A advantaged, to execute their nefarious designs. Such crimes have to be
dealt with firmly and cannot be equated with other crimes, committed by
individual offenders against individual victims.
51. There can be no doubt at all, that the right to a fair trial,
encompassing fair procedure is guaranteed under Article 21 of
B the Constitution of India. It is too late in the day to contend
otherwise. The safeguards provided in a statute, are always
scrupulously to be adhered to, more so when the punishment is
very severe. However, in my view, each case has to be decided
taking into account all relevant factors, particularly, the evidence
against the accused.
C
52. It is a well settled principle of criminal jurisprudence that an
accused is presumed innocent, unless proved guilty beyond reasonable
doubt, except where the statute, on existence of certain circumstances,
casts a reverse burden on the accused, to dispel the presumption of guilt,
as in the case of Section 304B of the Indian Penal Code and many other
D statutes, particularly those dealing with socio economic offences. The
Legislature may, in public interest, create an offence of strict liability
where mens rea is not necessary. There are presumptive provision in
the NDPS Act, such as Sections 35, 54 and 66. Under Section 54 of the
NDPS Act presumption of commission of an offence may, inter alia, be
E drawn from the possession of any narcotic drug or psychotropic
substance, or any apparatus for manufacture or preparation thereof.
The presumption is rebuttable.
53. The punishments prescribed for many of the offences under
the NDPS Act are very severe, as observed by my esteemed brother,
F Nariman J. Sections 21(b), 22(b), 23(b) and 25A prescribe punishment
of rigorous imprisonment, which may extend to ten years. Sections
21(c) and 23(c), 24 and 27A prescribe the punishment of rigorous
imprisonment for a term which shall not be less than ten years but may
extend to twenty years. Offences under Section 27B are punishable
with rigorous imprisonment of not less than 3 years which may extend to
G 10 years. Under Section 28, attempts to commit an offence entail
punishment for the offence. Section 29 makes abetment of and criminal
conspiracy to commit an offence, under the NDPS Act punishable with
the punishment for the offence. Section 30 prescribes punishment of
rigorous imprisonment for preparation for offences, for a term which is
H not to be less than one half of the minimum term if any, but might extend
TOFAN SINGH v. STATE OF TAMIL NADU 771
[INDIRA BANERJEE, J.]

to one half of the maximum term of imprisonment, which might have A
been awarded for committing the offence. Section 31 provides for
enhanced punishment for offences repeated after previous conviction
including death sentence in some exceptional cases. Certain provisions,
such as Sections 35, 54 and 66 for presumptions, though rebuttable, also
operate against the accused under the NDPS Act. When a statute
B
has drastic penal provisions, the authorities investigating the
crime under such law, have a greater duty of care, and the
investigation must not only be thorough, but also of a very high
standard.
54. There are inbuilt safeguards in the NDPS Act to protect a
person accused of an offence under the said Act, from unnecessary C
harassment, or malicious or wrongful prosecution. Reference may in
particular be made to Section 58, set out hereinafter, which provides for
punishment of any person, authorized under Section 42 or 43 or 44 for
vexatious entry, search, seizure, or arrest.
“58. Punishment for vexatious entry, search, seizure or D
arrest.—(1) Any person empowered under section 42 or
section 43 or section 44 who— (a) without reasonable ground
of suspicion enters or searches, or causes to be entered or
searched, any building, conveyance or place; (b) vexatiously
and unnecessarily seizes the property of any person on the E
pretence of seizing or searching for any narcotic drug or
psychotropic substance or other article liable to be
confiscated under this Act, or of seizing any document or
other article liable to be seized under section 42, section 43
or section 44; or (c) vexatiously and unnecessarily detains,
searches or arrests any person, shall be punishable with F
imprisonment for a term which may extend to six months or
with fine which may extend to one thousand rupees, or with
both. (2) Any person wilfully and maliciously giving false
information and so causing an arrest or a search being made
under this Act shall be punishable with imprisonment for a G
term which may extend to two years or with fine or with both.
55. As argued by Mr. Sushil Kumar Jain, Senior Advocate
appearing for the Appellant, the process under the NDPS Act begins,
when a competent officer, as specified in Section 41(2), empowered by
a general order of the Central Government or the State Government, H
772 SUPREME COURT REPORTS [2020] 12 S.C.R.

A has reason to believe, either from his personal knowledge or from
information given by any person, whose name need not be disclosed,
and taken down in writing, that any person has committed an offence
punishable under the NDPS Act or any narcotic drug, psychotropic
substance or any document, article etc. as mentioned in Section 41(2) is
kept concealed in any building conveyance or place.
B
56. The power of an officer empowered under Section 41(2) to
authorize arrest or search, is subject to his having reason to believe
from personal knowledge or information given by any person and taken
in writing, that the person has committed an offence punishable under
the NDPS Act or that any narcotic drug or psychotropic substance or
C controlled substance in respect of which any offence under the NDPS
Act has been committed, or any document or other article which may
furnish evidence of the commission of such offence or any illegally
acquired property or any document or other article which may furnish
evidence of holding any illegally acquired property which is liable for
D seizure or freezing or forfeiture under Chapter VA of this Act, is kept or
concealed in any building, conveyance or place.
57. Section 42 enables a duly empowered officer to enter any
building, conveyance or place, conduct a search, seize narcotic drugs,
psychotropic substances, and other articles in accordance with Section
E 42(1)(c), and detain, search or even arrest any person, subject to his
having “the reason to believe, from personal knowledge or
information given by any person and taken down in writing that
any narcotic drug, or psychotropic substance, or controlled
substance in respect of which an offence punishable under this Act
has been committed or any document or other article which may
F furnish evidence of the commission of such offence or any illegally
acquired property or any document or other article which may
furnish evidence of holding any illegally acquired property which
is liable for seizure or freezing or forfeiture under Chapter V-A of
this Act is kept or concealed in any building, conveyance or enclosed
G place.”
58. Section 42(2) requires the officer taking down information
and/or recording the grounds of his belief, to send a copy thereof to his
immediate superior within 72 hours. Section 43 enables any officer of
any of the departments mentioned in Section 42 to make arrests and
H
TOFAN SINGH v. STATE OF TAMIL NADU 773
[INDIRA BANERJEE, J.]

seizures of inter alia narcotic drugs and psychotropic substances in A
public places, subject to his having reason to believe that an offence
under the NDPS Act has been committed, and along with such drug or
substance, any animal or conveyance or article liable to confiscation
under the NDPS Act, any document or other article, which he has reason
to believe may furnish evidence of the commission of an offence
B
punishable under the NDPS Act, or any document or other article which
may furnish evidence of holding any illegally acquired property, which is
liable for seizure or freezing or forfeiture under Chapter VA of the NDPS
Act. The safeguards in Sections 41(2), 42 and 43 also apply to the
exercise of powers under Section 44 of entry, search, seizure and arrest
in relation to coca plant, opium, poppy and cannabis plant by officers C
empowered and/or authorized under Section 42. The Power of an officer
empowered under Section 42 to attach opium, poppy, cannabis plant or
coca plant under Section 48 is subject to his having reason to believe
that the same have illegally been cultivated.
59. The condition precedent for exercise of power under Sections D
41(2), 42(1), 43 or 44 is “reason to believe” and not just reason to “suspect”
that the circumstances specified in the aforesaid provisions for action
thereunder exist. The use of the words “reason to believe” in Sections
41, 42, 43 and 48 is in contradistinction with use of the phrase “Reason
to Suspect”, in Section 49 of the NDPS Act.
E
60. In A. S. Krishnan and Ors. v. State of Kerala4, cited by Mr.
Sushil Kumar Jain, this Court held:-
“9. ….”Reason to believe” is another facet of the state of mind.
“Reason to believe” is not the same thing as “suspicion” or
“doubt” and mere seeing also cannot be equated to believing. F
“Reason to believe” is a higher level of state of mind. Likewise
“knowledge” will be slightly on a higher plane than “reason
to believe”. A person can be supposed to know where there is
a direct appeal to his senses and a person is presumed to
have a reason to believe if he has sufficient cause to believe
the same. G
61. In Income Tax Officer, I Ward, District VI, Calcutta and
Ors. v. Lakhmani Mewal Das5cited by Mr. Jain, this court held:-
4
(2004) 11 SCC 576
5
(1976) 3 SCC 757 H
774 SUPREME COURT REPORTS [2020] 12 S.C.R.

A “8. ……..The expression “reason to believe” does not mean a
purely subjective satisfaction on the part of the Income Tax
Officer. The reason must be held in good faith. It cannot he
merely a pretence. It is open to the court to examine whether
the reasons for the formation of the belief have a rational
connection with or a relevant bearing on the formation of the
B
belief and are not extraneous or irrelevant for the purpose of
the section.”
62. The absence of “reasons to believe” would render entry, search,
seizure or arrest, Sections 41(2) 42, 43 and 44 of the NDPS Act bad in
law and also expose the officer concerned to disciplinary action as also
C punishment under Section 58 for a “vexatious” entry, search, seizure or
arrest, as argued by Mr. Jain.
63. The power of an officer authorised under Section 42, to stop
and search conveyance under Section 49, is subject to his having reasons
to suspect that any animal or conveyance is, or is about to be, used for
D the transport of any narcotic drug or psychotropic substance or controlled
substance, in respect of which he suspects that any provision of the
NDPS Act has been, or is being, or is about to be, contravened.
64. Section 50(1) gives the option to a person, to be personally
searched under Section 41/42, to require that he be taken before the
E nearest Magistrate or Gazetted Officer, in whose presence he might be
searched. If he cannot be taken to the nearest Magistrate or Gazetted
Officer, for the reasons contained in Section 50(5), the officer authorized
under Section 42 may proceed to search him, as provided under Section
100 of the Cr.P.C.
F 65. Section 50(5), inserted by amendment in 2001, does not dilute
the safeguards in the preceding sub-sections for search of a person in
the presence of a Magistrate or Gazetted Officer, if such person so
requires. It is only in very urgent cases, that a person can be examined
in accordance with Section 50(5). After the search is so conducted in
G terms of Section 50(5), the Officer would have to record the reasons for
the belief, which necessitated such search, in the absence of a Magistrate
or Gazetted Officer, and send a copy thereof to his immediate superior
officer within 72 hours. [Section 50(6)]. Section 51 makes the
provisions of the Cr.P.C. applicable to all warrants, arrests, searches
and seizures under the NDPS Act, insofar as they are not inconsistent
H with the NDPS Act.
TOFAN SINGH v. STATE OF TAMIL NADU 775
[INDIRA BANERJEE, J.]

66. Section 52(1) of the NDPS Act provides that any officer A
arresting a person under Section 41, Section 42, Section 43 or Section 44
shall, as soon as may be, inform him of the grounds for such arrest.
Section 52(2) requires that every person arrested and article seized under
warrant issued under sub-section (1) of Section 41, shall be forwarded
without unnecessary delay to the Magistrate by whom the warrant was
B
issued. Sub-section (3) of Section 52 requires that every person arrested
and article seized under sub-section (2) of Section 41, Section 42, Section
43 or Section 44 shall be forwarded without unnecessary delay to—
(a) the Officer-in-Charge of the nearest Police Station, or
(b) the officer empowered under Section 53. C
67. For imposing a punishment higher than the minimum term of
imprisonment or amount of fine prescribed, the Court is required to take
into account, in addition to such factors as it deems fit, the following
factors:
(a) the use or threat of use of violence or arms by the offender; D
(b) the fact that the offender holds a public office and that he
has taken advantage of that office in committing the offence;
(c) the fact that the minors are affected by the offence or the
minors are used for the commission of an offence;
E
(d) the fact that the offence is committed in an educational
institution or social service facility or in the immediate vicinity
of such institution or faculty or in other place to which school
children and students resort for educational, sports and social
activities;
F
(e) the fact that the offender belongs to organised
international or any other criminal group which is involved
in the commission of the offence; and
(f) the fact that the offender is involved in other illegal
activities facilitated by commission of the offence. G
68. The NDPS Act is a complete code. The NDPS Act specifically
makes some provisions of the Cr.P.C applicable to proceedings under
the NDPS Act. The Act is very specific on which of the provisions of
the Cr.P.C. are to apply to proceedings under the NDPS Act.
H
776 SUPREME COURT REPORTS [2020] 12 S.C.R.

A 69. A careful reading of the provisions of the NDPS Act show:
(i) Words and expressions used in the NDPS Act and not
defined in the said Act, but defined in the Cr.P.C. would, unless
the context otherwise requires, have the meanings assigned
to such words and expressions in the Cr.P.C. [Section 2(xxix)]
B (ii) Nothing contained in section 360 of the Criminal
Procedure Code, 1973 or in the Probation of Offenders Act,
1958 is to apply to a person convicted under the NDPS Act,
unless such a person is under 18 years of age. [Section 33].
(iii) Notwithstanding anything contained in the Cr.P.C, Special
C Courts constituted under Section 36 of the NDPS Act are to
try all offences punishable with imprisonment for a term of
more than three years. [Section 36A(1)(a)].
(iv) The Cr.P.C does not apply to the power of a Judicial
Magistrate to authorize the detention of a person accused or
D suspected of an offence under the NDPS Act, produced before
him, in such custody as he thinks fit, for a period not exceeding
15 days, and that of an Executive Magistrate to do so for a
period not exceeding 7 days. [Section 36A(1)(b)].
(v) Where a person accused or suspected of an offence under
E the NDPS Act, is forwarded to a Special Court under Clause
(b) of Section 36A of the NDPS act, the Special Court shall
have the same power which a Magistrate, having jurisdiction
to try a case, may exercise under Section 167 of the Cr.P.C.,
notwithstanding anything to the contrary in the Cr.P.C.
F [Section 36A(1)(c)].
(vi) While trying an offence under the NDPS Act, the Special
Court may also try an offence other than an offence under
the NDPS Act, with which the accused may under the Cr.P.C.
be charged at the same trial. [Section 36A(2)].
G (vii) Nothing contained in Section 36A of the NDPS Act is to
be deemed to affect the special powers of the High Court
regarding bail under Section 439 of Cr.P.C. [Section 36A(3)].
(viii) In respect of offences under the NDPS Act punishable
under Sections 19 or 24 or 27A thereof involving commercial
H quantity, the references in Section 167(2) of the Cr.P.C. to
TOFAN SINGH v. STATE OF TAMIL NADU 777
[INDIRA BANERJEE, J.]

“90 days” where they occur, are to be construed as reference A
to 180 days. [Section 36A(4)].
(ix) Notwithstanding anything contained in the Cr.P.C.,
offences punishable under NDPS Act, with imprisonment not
exceeding three years might be tried summarily. [Section 36
A(5)] B
(x) The High Court might exercise, so far as may be, all the
powers of Appeal and Revision conferred by Chapter XXIX
and XXX of the Cr.P.C. as if a Special Court within the limits
of its territorial jurisdiction were a Court of Session. [Section
36 B] C
(xi) Save as otherwise provided in the NDPS Act, the provisions
of the Cr.P.C., (including provisions as to bails and bonds)
are to apply to proceedings before a Special Court and for
the purpose of the said provisions, the Special Court is deemed
to be a Court of Session and the person conducting D
prosecution before Special Court is deemed to be a Public
Prosecutor. [Section 36 C]
(xii) Until a Special Court is constituted as per the NDPS
(Amendment) Act, 1988, any offence triable by a Special
Court, is, notwithstanding anything in the Cr.P.C., triable by E
a Court of Session. [Section 36 D]
(xiii) The power of the High Court under Section 407 of the
Cr.P.C. to transfer cases is not affected by Section 36 D (2) in
view of the proviso thereto.
(xiv) Notwithstanding anything in the Cr.P.C. every offence F
punishable under the NDPS Act is cognizable. [Section
37(1)(a)]
(xv) Notwithstanding anything in the Cr.P.C., no person
accused of the offences specified in section 37(1)(b) is to be
released on bail, on his own bond, unless the Public G
Prosecutor has been given the opportunity to oppose the
release on bail, or where the Public Prosecutor has opposed
the release on bail, the Court is satisfied that there are
reasonable grounds for believing that the person is not guilty
of such offence and that he is not likely to commit any offence,
while on bail. H
778 SUPREME COURT REPORTS [2020] 12 S.C.R.

A (xvi) The limitations in the Cr.P.C. on grant of bail, are in
addition to the limitations in Section 37(1)(b) of the NDPS
Act. [Section 37(2)]
(xvii) Personal search is to be made in accordance with Section
100 of Cr.P.C. if the person to be searched cannot be taken
B to the nearest Magistrate or Gazetted Officer inspite of
exercise of option to be searched before such Magistrate or
Gazetted Officer. [Section 50(5)]
(xviii) The provisions of the Cr.P.C. are to apply to all warrants
issued and searches and seizures made under the NDPS Act
C in so far as they are not inconsistent with any provision of the
NDPS Act. [Section 51]
(xix) Notwithstanding anything contained in the Indian
Evidence Act, 1872 or the Cr.P.C., every Court is to treat the
inventory, photographs of narcotic drugs, psychotropic
D substances etc. as primary evidence of offence under the
NDPS Act. [Section 52A(4)]
70. Under Section 4 of the Cr.P.C all offences under the Indian
Penal Code, 1960, hereinafter referred to as ‘IPC’ are to be investigated,
inquired into and tried or otherwise dealt with according to the provisions
E of the Cr.P.C. Offences under any other law might also be investigated,
inquired into, tried and otherwise dealt with according to the same
provisions, but subject to any other enactment in force regulating the
manner or place of investigating, inquiring into, trying or otherwise dealing
with such offences. Section 4 of the Cr.P.C. is set out hereinbelow:

F 4. Trial of offences under the Indian Penal Code and other
laws.—(1) All offences under the Indian Penal Code (45 of
1860) shall be investigated, inquired into, tried, and otherwise
dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated,
inquired into, tried, and otherwise dealt with according to
G
the same provisions, but subject to any enactment for the time
being in force regulating the manner or place of investigating,
inquiring into, trying or otherwise dealing with such offences.
71. Referring to Section 4(2) of the Cr.P.C Mr. Sushil Kumar
Jain, argued that provisions of the Cr.P.C would apply to all proceedings
H
TOFAN SINGH v. STATE OF TAMIL NADU 779
[INDIRA BANERJEE, J.]

under the NDPS Act, unless intention to the contrary was shown. Mr. A
Jain also referred to Section 2(xxix) of the NDPS Act in support of his
aforesaid submission.
72. However, Section 5 of the Cr.P.C., set out hereinbelow for
convenience, provides:-
“5. Saving.—Nothing contained in this Code shall, in the B
absence of a specific provision to the contrary, affect any
special or local law for the time being in force, or any special
jurisdiction or power conferred, or any special form of
procedure prescribed, by any other law for the time being in
force.” C
73. Mr. Jain’s argument that the Cr.P.C. would apply to all
proceedings under the NDPS Act, unless a contrary intention is shown,
by reference to Section 4(2) of the Cr.P.C., cannot be sustained, as
Section 5 specifically provides that nothing in the Cr.P.C shall, in the
absence of a specific provision to the contrary, affect any special law in D
force or any special jurisdiction or power conferred by any other law.
The NDPS Act being a special enactment, nothing in the Cr.P.C can
affect any investigation or inquiry under the NDPS Act, in the absence
of any provision to the contrary in the NDPS Act.
74. Section 2(xxix) of the NDPS Act does not make the provisions E
of the Cr.P.C. applicable to any investigation or enquiry under the NDPS
Act. The said Section only provides that words and expressions used in
the NDPS Act, and not defined, but defined in the Cr.P.C. have the
meanings assigned in the Cr.P.C., unless the context otherwise requires.
75. Section 53 of the NDPS Act provides: F
53. Power to invest officers of certain departments with powers
of an officer-in-charge of a police station.—(1) The Central
Government, after consultation with the State Government,
may, by notification published in the Official Gazette, invest
any officer of the department of central excise, narcotics,
G
customs, revenue intelligence or any other department of the
Central Government including para-military forces or armed
forces or any class of such officers with the powers of an
officer-in-charge of a police station for the investigation of
the offences under this Act.
H
780 SUPREME COURT REPORTS [2020] 12 S.C.R.

A (2) The State Government may, by notification published in
the Official Gazette, invest any officer of the department of
drugs control, revenue or excise or any other department or
any class of such officers with the powers of an officer-in-
charge of a police station for the investigation of offences
under this Act.
B
76. Section 53 is an enabling provision, which enables the Central
Government or the State Government, by notification in the Official
Gazette, to invest any officer of the Departments mentioned in the said
Section, or any other Department of the Government, with the powers
of an Officer in Charge of a Police Station for the investigation of offences
C under the said Act.
77. If the provisions of the Cr.P.C were to apply to investigations
under the NDPS Act, it would not have been necessary to invest any
officer under the NDPS Act with the powers of an Officer in Charge of
a Police Station, for the purpose of investigation of an offence under the
D NDPS Act, by notification in the Official Gazette. The provisions of
Section 50(5) and 51 of the NDPS Act would also not have been
necessary.
78. There does not appear to be any bar in Section 53 or anywhere
else in the NDPS Act, to officers empowered under Sections 41(2) or
E 42, also being invested under Section 53, with the powers of an Officer
in Charge of a Police Station for investigation of offences under Section
53 of the NDPS Act. There being no bar under the NDPS Act, the
same officer empowered under Section 42, who had triggered the process
of an enquiry, and made any search seizure or arrest under Chapter V
F of the NDPS Act, on the basis of information provided by an informant,
or on the basis of his own personal knowledge, might investigate into the
offence if he is also invested under Section 53, with the powers of
investigation of an Officer in Charge of a Police Station, for the purpose
of investigation of an offence under the NDPS Act.

G 79. There does not appear to be any provision in Chapter V or
elsewhere in the NDPS Act, which can reasonably be construed to render
an officer under Section, 41(2) or 42(1) of the NDPS Act ‘functus officio’
once the entry, search, seizure or arrest has been made. What Section
42(2) requires is that, an officer who takes down any information in
writing under Section 42(1) or records the grounds of his belief under
H
TOFAN SINGH v. STATE OF TAMIL NADU 781
[INDIRA BANERJEE, J.]

the proviso thereto, should send a copy of the information with the grounds A
of belief to his immediate official superior, within 72 hours.
80. Section 53A of the NDPS Act provides:
53-A. Relevancy of statements under certain circumstances.—
(1) A statement made and signed by a person before any officer
empowered under Section 53 for the investigation of offences, B
during the course of any inquiry or proceedings by such
officer, shall be relevant for the purpose of proving, in any
prosecution for an offence under this Act, the truth of the
facts which it contains,—
(a) when the person who made the statement is dead or cannot C
be found, or is incapable of giving evidence, or is kept out of
the way by the adverse party, or whose presence cannot be
obtained without an amount of delay or expense which, under
the circumstances of the case, the court considers
unreasonable; or D
(b) when the person who made the statement is examined as a
witness in the case before the court and the court is of the
opinion that, having regard to the circumstances of the case,
the statement should be admitted in evidence in the interest of
justice. E
(2) The provisions of sub-section (1) shall, so far as may be,
apply in relation to any proceedings under this Act or the
rules or orders made thereunder, other than a proceeding
before a court, as they apply in relation to a proceeding before
a court. F
81. Section 53A of the NDPS Act is ex facie contradictory to
Section 162 of the Cr.P.C, which provides that no statement made to a
police officer, in course of an investigation under Chapter XII of the
Cr.P.C shall, if reduced to writing, be signed by the person making it, or
used for any purpose at any inquiry or trial in respect of the offences
G
under investigation, except inter alia to confront him if he gives evidence
as a witness.
82. Section 53A covers any statement made and signed by any
person, before any officer empowered under Section 53 for the
investigation of offences, during the course of any proceedings by such
H
782 SUPREME COURT REPORTS [2020] 12 S.C.R.

A officer, under the NDPS Act, be it an inquiry or investigation. This
provision makes it abundantly clear that the principles embodied in
Sections 161/162 of the Cr.P.C have no application to any inquiry or
other proceeding under the NDPS Act, which would include an
investigation.
B 83. The judgments of this Court in State of Delhi v. Shri Ram
Lohia6 and George v. State of Kerala and Anr.7, cited by Mr. Jain,
which were rendered in the context of statements under Section 164 of
the Cr.P.C. The judgments are of no assistance to the Appellants as they
are not binding precedents in respect of the issues referred to this Bench.
Sections 161 to 164 of the Cr.P.C. have no application to proceedings
C under the NDPS Act, as discussed earlier.
84. The judgment of this Court in Munshi Prasad and Ors.v.
State of Bihar8cited by Mr. Jain, in the context of reliance on a post
mortem report in a murder trial, is also of no assistance to the appellant,
as this Court had no occasion to deal with Section 52A(4) or 54 or 66 or
D any other provision of the NDPS Act.
85. The NDPS Act, being a special statute, and in any case a
later Central Act, the provisions of the NDPS Act would prevail, in case
of any inconsistency between the NDPS Act and the Evidence Act.
Section 52A(4) expressly provides:
E
“Notwithstanding anything contained in the Indian Evidence
Act, 1872 or the Code of Criminal Procedure, 1973, every
Court trying an offence under this Act, shall treat the
inventory, the photographs of narcotic drugs, psychotropic
substances, controlled substances or conveyances and any
F list of samples drawn under sub-section (2) and certified by
the Magistrate, as primary evidence in respect of such
offence.”
86. The Evidence Act would however apply to a trial under the
NDPS Act in other respects, unless a contrary intention appears from
G any specific provision of the NDPS Act. The previous statement of a
witness, even if admissible in evidence cannot be used against the witness
unless the witness is confronted with the previous statement and given
6
AIR 1960 SC 490
7
(1998) 4 SCC 605
8
H (2002) 1 SCC 351
TOFAN SINGH v. STATE OF TAMIL NADU 783
[INDIRA BANERJEE, J.]

an opportunity to explain, as held by this Court in Murli and Anr. v. A
State of Rajasthan9cited by Mr. Jain. However, certain documents not
otherwise admissible under the Evidence Act, unless proved by evidence,
may be admissible under Section 52A(4) of the NDPS Act, subject to
the fulfilment of the conditions of that section.
87. Section 54 of the NDPS Act, the constitutional vires whereof B
has been upheld in Noor Aga (supra) provides:
54. Presumption from possession of illicit articles.—In trials
under this Act, it may be presumed, unless and until the contrary
is proved, that the accused has committed an offence under this
Act in respect of— C
(a) any narcotic drug or psychotropic substance or controlled
substance;
(b) any opium poppy, cannabis plant or coca plant growing on any
land which he has cultivated;
D
(c) any apparatus specially designed or any group of utensils
specially adopted for the manufacture of any narcotic drug or
psychotropic substance or controlled substance; or
(d) any materials which have undergone any process towards the
manufacture of a narcotic drug or psychotropic substance or
E
controlled substance, or any residue left of the materials from
which any narcotic drug or psychotropic substance or controlled
substance has been manufactured,
for the possession of which he fails to account satisfactorily.
88. Section 66 of the NDPS Act provides:- F
“66. Presumption as to documents in certain cases.—Where
any document—
(i) is produced or furnished by any person or has been seized
from the custody or control of any person, in either case,
under this Act or under any other law, or G

(ii) has been received from any place outside India (duly
authenticated by such authority or person and in such manner
as may be prescribed by the Central Government) in the
9
(2009) 9 SCC 417 H
784 SUPREME COURT REPORTS [2020] 12 S.C.R.

A course of investigation of any offence under this Act alleged
to have been committed by a person, and such document is
tendered in any prosecution under this Act in evidence against
him, or against him and any other person who is tried jointly
with him, the court shall—
B (a) presume, unless the contrary is proved, that the signature
and every other part of such document which purports to be
in the handwriting of any particular person or which the court
may reason ably assume to have been signed by, or to be in
the handwriting of, any particular person, is in that person’s
handwriting; and in the case of a document executed or
C attested, that it was executed or attested by the person by
whom it purports to have been so executed or attested;
(b) admit the document in evidence, notwithstanding that it is
not duly stamped, if such document is otherwise admissible in
evidence;
D
(c) in a case falling under clause (i), also presume, unless the
contrary is proved, the truth of the contents of such document.”
89. Section 67 of the NDPS Act provides that any officer referred
to in Section 42, who is duly authorized in this behalf by the Central or
E State Government, may during the course of any inquiry:
(i) call for information from any person for the purpose of
satisfying himself whether there has been any contravention of
the provisions of this Act or any rule or order made thereunder;
(ii) require any person to produce or deliver any document or
F thing useful or relevant to the enquiry;
(iii) examine any person acquainted with the facts and
circumstances of the case.
90. Legislature has in its wisdom used the expression “investigation
of the offence” in Section 53, and the term “inquiry” in Section 67.
G Even though in common parlance “inquiry” and “investigation” are used
interchangeably, “investigation” in Section 53 and “inquiry” in Section
67 cannot be construed to mean the same.
91. It is well settled that, when different words are used in the
same statute, there is a presumption that they are not used in the same
H
TOFAN SINGH v. STATE OF TAMIL NADU 785
[INDIRA BANERJEE, J.]

sense. Accordingly, in T.A. Krishnaswamy v. State of Madras10, this A
Court held that the words “test” and “analysis” used in Rule 40 of the
Central Rules under the Drugs Act 1940 were to be given different
meanings.
92. Of course, too much weight cannot be given to the presumption
arising out of use of different words in different parts of a statute, when B
dealing with a long complicated statute, for example a consolidating
statute, with incongruous provisions lumped together. Even otherwise,
the context in which the words have been used is relevant, as a less
careful draftsman may use different words to convey the same meaning,
in a hurriedly enacted statute. This proposition finds support from
Kanhaiyalal Vishindas Gidwani v. Arun Dattatreya Mehta 11. A C
construction deriving support from differing phraseology in different
sections of a statute, may be negatived if it leads to unreasonable or
irrational results.
93. In the NDPS Act, the Legislature appears to have consciously
intended “inquiry” and “investigation” to convey a different meaning. D
Accordingly Section 53A refers to a statement before any officer
empowered under Section 53 for the investigation of offences during
the course of any inquiry or proceeding by such officer.
94. The NDPS Act does not define the expression “investigation”
or the expression “inquiry”. However, Section 2(xxix) of the NDPS Act E
provides:
“2(xxix). words and expressions used herein and not defined
but defined in the Code of Criminal Procedure, 1973 (2 of
1974) have the meanings respectively assigned to them in that
Code.” F
95. The definition of the terms ‘inquiry’ and ‘investigation’ as
contained in Sections 2(g) and 2(h) of the Cr.P.C. are as follows:
“2.(g) “inquiry” means every inquiry, other than a trial,
conducted under this Code by a Magistrate or Court;
G
(h) “investigation” includes all the proceedings under this
Code for the collection of evidence conducted by a police
officer or by any person (other than a Magistrate) who is
authorised by a Magistrate in this behalf”
10
AIR 1966 SC 1022
11
(2001) 1 SCC 78 H
786 SUPREME COURT REPORTS [2020] 12 S.C.R.

A 96. The meaning of a word or expression used in a statute can be
construed and understood as per its definition, unless the “context
otherwise requires”. The definition of inquiry in Section 2(g) of the
Cr.P.C. does not help to interpret the word inquiry in Section 67 of the
NDPS Act or in any other provision of Chapter V thereof, since an
inquiry under Chapter V of the NDPS Act is not by any Magistrate or
B
Court.
97. It is well settled that a word not specifically defined in a statute
may be interpreted as per its ordinary meaning, which may be ascertained
by reference to a dictionary. As per the Concise Oxford English
Dictionary (Eleventh Edition) the word investigate means ‘carry out a
C systematic or formal enquiry into an incident or allegation as to establish
the truth’. Investigation, is the act of investigating. The word “enquire”
is, as per the same dictionary, to ask for information. It also means
“investigate”. Enquiry is the act of asking for information. It is an
official investigation. Words and phrases in a statute have to be construed
D in the context in which they have been used. The statute has to be read
as a whole.
98. The words “inquiry” and “investigation” have also been used
in statutes such as the Central Excise Act 1944, the Customs Act 1962,
the Railway Property (Unlawful Possession) Act 1966, and the Cr.P.C.
E which also prescribe a procedure for proceeding against offenders.
These statutes may be taken into consideration to construe the meaning
of the expression “inquiry” in Section 67 of the NDPS Act and the
difference, if any, between the expression “inquiry” as used in Section
67 of the NDPS Act and the expression “investigation” as used in Section
53 of the said Act. While Sections 155-157 of the Cr.P.C. speak of
F investigation of cognizable offences, Section 8 of the Railway Property
(Unlawful Possession) Act, speaks of inquiry into the charge of
commission of an offence under that Act, Section 14 of the Central
Excise Act contemplates inquiry for the purposes of the Central Excise
Act which could also include inquiry for the prosecution of an offence
G under the said Act and Section 107 of the Customs Act speaks of inquiry
in connection with smuggling.
99. It seems that the word ‘inquiry’ has been used in the Railway
Property (Unlawful Possession) Act, Customs Act, Central Excise Act
in the same sense as the word ‘investigation’ in the Cr.P.C. in respect of
H an offence. The choice of the expression ‘inquiry’ in preference to
TOFAN SINGH v. STATE OF TAMIL NADU 787
[INDIRA BANERJEE, J.]

investigation, in the statutes named above, except the Cr.P.C., may A
perhaps be linked to the definition of ‘inquiry’ in the Cr.P.C. to mean an
inquiry other than a trial by a Magistrate or a Court, since inquiry under
those statutes enjoy the status of judicial proceedings, for the purposes
of Sections 193 and 228 of the IPC. However, it is patently clear that
the two expressions do not convey the same meaning in the NDPS Act.
B
100. Having regard to the meaning of the expressions investigate/
investigation and enquire/enquiry given in the Dictionary referred to
above, the use of the expressions in the statutes referred to above and
having regard to the language and tenor of Sections 53, 53A, and Section
67 of the NDPS Act, the expression “inquiry” may reasonably be
construed as a generic expression, which could include the investigation C
of an offence. An inquiry as contemplated in Section 67 is the collection
of information generally, to find out if there has been any contravention
of the NDPS Act, whereas investigation is the probing of an offence
under the NDPS Act and collection of materials to find out the truth of
the case sought to be made out against an accused offender. However D
investigation may follow an enquiry or be part of an enquiry. This is
evident from a reading of the NDPS Act as a whole.
101. The difference between the terms “investigation” and
“inquiry” is, however, not really material to the issue of whether an officer
invested under Section 53 with the powers of the Officer in Charge of a E
Police Station for investigation of an offence under the NDPS Act, is a
police officer within the meaning of Section 25 of the Evidence Act or
whether a statement made in an inquiry as contemplated in Section 67,
can be used against an accused offender in the trial of an offence under
the NDPS Act.
F
102. An officer empowered under Section 53 with the powers of
an Officer in Charge of a Police Station for the investigation of an offence,
also has the power to make an inquiry. This is clear from the language
used in Section 53A(1) of the NDPS Act. The words “A statement
made and signed by a person before any officer empowered under
Section 53 for the investigation of offences, during the course of G
any inquiry or proceedings by such officer” clinches the issue. The
officer empowered under Section 53, with the power of an Officer in
Charge of a Police Station, can obviously make an inquiry within the
meaning of Section 67 to find out whether there has been any
contravention of the NDPS Act. A statement made before such an H
788 SUPREME COURT REPORTS [2020] 12 S.C.R.

A officer in course of any inquiry or other proceeding, which is taken down
in writing and signed by the person making it, may in certain
circumstances, be relevant for the purpose of proving, in any prosecution
for an offence under the NDPS Act, the truth of the facts it contains.
103. The power of an officer to investigate is not derived from
B Section 53, which as observed earlier in this judgment, is an enabling
provision, which empowers the Central/State Government to invest an
officer with the powers of an Officer in Charge of a Police Station, for
the purpose of investigation of an offence under the NDPS Act. The
power to invest an officer with the powers of an Officer in Charge of a
Police Station flows from Section 53. The authority to investigate into
C an offence is implicit in the wider power to make an inquiry in connection
with the contravention of any provision of the NDPS Act.
104. An enquiry may be carried out by an officer referred to in
Section 42 of the NDPS Act, if empowered in this behalf. This is clear
from Section 67. The same officer can also investigate an offence
D under the NDPS Act, if he is also invested under Section 53, with the
powers of an Officer in Charge of a Police Station, for the purpose of
investigation of an offence under the NDPS Act.
105. The power of an authorized officer referred to in Section 42,
to make an inquiry is not derived from Section 67. This is clear from the
E language used in Section 67, which reads “any officer referred to in
Section 42 who is authorised in this behalf by the Central
Government or a State Government may, during the course of any
enquiry in connection with the contravention of any provisions of
this Act call for information etc.” The power to make an enquiry
F flows from the various provisions of Chapter V of the NDPS Act.
106. Section 67 empowers an authorized officer, referred to in
Section 42, to do the following acts during the course of an enquiry:
“(a) call for information from any person for the purpose of
satisfying himself whether there has been any contravention of
G the provisions of this Act or any rule or order made thereunder;
(b) require any person to produce or deliver any document or
thing useful or relevant to the enquiry;
(c) examine any person acquainted with the facts and
circumstances of the case.”
H
TOFAN SINGH v. STATE OF TAMIL NADU 789
[INDIRA BANERJEE, J.]

107. Investigation of an offence under the NDPS Act, is a part of A
an inquiry under Chapter V of the said Act. Investigation of an offence
under the NDPS Act can be carried out by the same officer empowered
under Section 42, who triggered the proceedings under Chapter V of the
NDPS Act and carried out search, seizure and/or arrest, if that officer is
also invested under Section 53 of the NDPS Act, with the powers of an
B
Officer in Charge of a Police Station, for the purpose of investigation.
108. In Mukesh Singh v. State (Narcotic Branch of Delhi) 12 a
Constitution Bench of this Court, unanimously held that an investigation
is not vitiated only because the same officer, who was the complainant
against the accused offender also investigated into the offence as
Investigating Officer. The investigation may also be carried out by a C
different officer, invested under Section 53 with the powers of an Officer
in Charge of the Police Station for the purpose of investigation under the
NDPS Act. Section 52(3) of the NDPS Act, thus, provides:-
“(3) Every person arrested and article seized under sub-
section (2) of Section 41, Section 42, Section 43 or Section D
44 shall be forwarded without unnecessary delay to—
(a) the officer-in-charge of the nearest police station, or
(b) the officer empowered under Section 53.”
109. If the officer empowered under Section 53, is the same person E
as the officer empowered under Section 42, every arrested person and
article seized under Sections 41(2), 42, 43 or 44 will have to be forwarded,
without delay, to the Officer in Charge of the nearest Police Station. If
the officer referred to in Section 42, is not invested with powers under
Section 53, persons arrested and the articles seized by him under Sections F
41(2), 42 etc. might be forwarded either to the Officer in Charge of the
nearest Police Station or to the officer invested under Section 53 of the
NDPS Act, with the powers of an Officer in Charge of a Police Station,
for the purpose of investigation of an offence.
110. The language and tenor of Section 67 or Sections 41/42 does
G
not support the contention that an inquiry can only be made by an officer
referred to in Section 42, who is duly authorized, before exercise of the
powers of entry, search, seizure or arrest, or at the stage of entry, search,
seizure and arrest, but not afterwards. The exercise of power under
12
(2020) SCC Online SC 700 H
790 SUPREME COURT REPORTS [2020] 12 S.C.R.

A Sections 41/42 of the NDPS Act does not necessarily have to be preceded
by an inquiry. If an inquiry were to be restricted to the stage prior to the
exercise of the power of entry, search, seizure and arrest or to the stage
of making an entry, search, seizure or arrest, the NDPS Act would have
specifically provided so. There is no such provision, either express or
implied. It is not permissible to read into Sections 41, 42 etc the words
B
“after an inquiry” which do not exist in those provisions. Nor is it
permissible to read the words “before or at the time of entry, search,
seizure or arrest” after the words “during the course of any enquiry” in
Section 67.
111. The power conferred by Section 67 on an officer referred to
C in Section 42, duly authorised by the Central/State Government in this
behalf, to call for information, require production of any document or
thing or to examine any person, etc. is exercisable in course of any
inquiry. The power could be exercised at any stage of the enquiry, before
a complaint is filed. The powers can be exercised prior to or after exercise
D of powers under Sections 41/42 and would include the stage of
investigation of an offence by an officer referred to in Section 42, if he
is also invested with powers under Section 50 of the NDPS Act.
112. An officer referred to in Section 42 of the NDPS Act, if not
invested with powers under Section 53 of the said Act, derives the power
E to call for information, require production of documents and things and
to examine persons from Section 67 of the NDPS Act. The powers of
investigation of an Officer in Charge of a Police Station include such
powers. An officer invested with powers under Section 53 can also
make an enquiry. This is clear from the use of the words “A statement
made and signed by a person before any officer empowered under
F Section 53 for the investigation of offences, during the course of
any inquiry or proceedings by such officer, shall be relevant...” in
Section 53A(1). The benefit of Section 53A(1) would not be available
in the case of a similar statement made before an officer empowered
under Section 42, but not under Section 53 of the NDPS Act.
G 113. If, after an inquiry or investigation, a complaint is filed, and
the Special Court takes cognizance of the offence, any statements,
documents or other things obtained in the inquiry/investigation may be
tendered and proved by the prosecution in the trial against the offender
unless the statement and/or document and/or thing has been obtained by
H any promise, inducement, coercion, threat, or intimidation. The question
TOFAN SINGH v. STATE OF TAMIL NADU 791
[INDIRA BANERJEE, J.]

of whether any statement has been obtained by promise, coercion, A
threat etc. and/or whether any particular officer, is authorized
under Section 42 or invested with powers under Section 53 are
matters of trial. The Prosecution has to establish the charges
against the offender, in accordance with law, at the trial.
114. Chapter XII of the Cr.P.C governs information to the police B
and the power of the police to investigate into offences. The relevant
provisions of the Chapter XII are set out hereinbelow:-
“154. Information in cognizable cases.—(1) Every information
relating to the commission of a cognizable offence, if given
orally to an officer in charge of a police station, shall be C
reduced to writing by him or under his direction, and be read
over to the informant; and every such information, whether
given in writing or reduced to writing as aforesaid, shall be
signed by the person giving it, and the substance thereof shall
be entered in a book to be kept by such officer in such form
as the State Government may prescribe in this behalf. D

*****
(3) Any person aggrieved by a refusal on the part of an officer
in charge of a police station to record the information referred
to in sub-section (1) may send the substance of such E
information, in writing and by post, to the Superintendent of
Police concerned who, if satisfied that such information
discloses the commission of a cognizable offence, shall either
investigate the case himself or direct an investigation to be
made by any police officer subordinate to him, in the manner
provided by this Code, and such officer shall have all the F
powers of an officer in charge of the police station in relation
to that offence.
155. Information as to non-cognizable cases and investigation
of such cases.—(1) When information is given to an officer
in charge of a police station of the commission within the G
limits of such station of a non-cognizable offence, he shall
enter or cause to be entered the substance of the information
in a book to be kept by such officer in such form as the State
Government may prescribe in this behalf, and refer the
informant to the Magistrate.
H
792 SUPREME COURT REPORTS [2020] 12 S.C.R.

A (2) No police officer shall investigate a non-cognizable case
without the order of a Magistrate having power to try such
case or commit the case for trial.
(3) Any police officer receiving such order may exercise the
same powers in respect of the investigation (except the power
B to arrest without warrant) as an officer in charge of a police
station may exercise in a cognizable case.
(4) Where a case relates to two or more offences of which at
least one is cognizable, the case shall be deemed to be a
cognizable case, notwithstanding that the other offences are
C non-cognizable.
156. Police officer’s power to investigate cognizable case.—
(1) Any officer in charge of a police station may, without the
order of a Magistrate, investigate any cognizable case which
a Court having jurisdiction over the local area within the
D limits of such station would have power to inquire into or try
under the provisions of Chapter XIII. (2) No proceeding of a
police officer in any such case shall at any stage be called in
question on the ground that the case was one which such
officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order
E such an investigation as above-mentioned.
157. Procedure for investigation.—(1) If, from information
received or otherwise, an officer in charge of a police station
has reason to suspect the commission of an offence which he
is empowered under section 156 to investigate, he shall
F forthwith send a report of the same to a Magistrate empowered
to take cognizance of such offence upon a police report and
shall proceed in person, or shall depute one of his subordinate
officers not being below such rank as the State Government
may, by general or special order, prescribe in this behalf, to
G proceed, to the spot, to investigate the facts and circumstances
of the case, and, if necessary, to take measures for the
discovery and arrest of the offender: Provided that—
(a) when information as to the commission of any such offence
is given against any person by name and the case is not of a
serious nature, the officer in charge of a police station need
H
TOFAN SINGH v. STATE OF TAMIL NADU 793
[INDIRA BANERJEE, J.]

not proceed in person or depute a subordinate officer to make A
an investigation on the spot;
(b) if it appears to the officer in charge of a police station
that there is no sufficient ground for entering on an
investigation, he shall not investigate the case.
158. Report how submitted.—(1) Every report sent to a B
Magistrate under section 157 shall, if the State Government
so directs, be submitted through such superior officer of
police as the State Government, by general or special order,
appoints in that behalf.
(2) Such superior officer may give such instructions to the C
officer in charge of the police station as he thinks fit, and
shall, after recording such instructions on such report,
transmit the same without delay to the Magistrate.
xxx xxx xxx
D
160. Police officer ’s power to require attendance of
witnesses.—(1) Any police officer making an investigation
under this Chapter may, by order in writing, require the
attendance before himself of any person being within the limits
of his own or any adjoining station who, from the information
given or otherwise, appears to be acquainted with the facts E
and circumstances of the case; and such person shall attend
as so required:
Provided that no male person under the age of fifteen years
or above the age of sixty-five years or a woman or a mentally
or physically disabled person shall be required to attend at F
any place other than the place in which such male person or
woman resides.
(2) The State Government may, by rules made in this behalf,
provide for the payment by the police officer of the reasonable
expenses of every person, attending under sub-section (1) at G
any place other than his residence.
161. Examination of witnesses by police.—(1) Any police
officer making an investigation under this Chapter, or any
police officer not below such rank as the State Government
may, by general or special order, prescribe in this behalf, H
794 SUPREME COURT REPORTS [2020] 12 S.C.R.

A acting on the requisition of such officer, may examine orally
any person supposed to be acquainted with the facts and
circumstances of the case.
(2) Such person shall be bound to answer truly all questions
relating to such case put to him by such officer, other than
B questions the answers to which would have a tendency to
expose him to a criminal charge or to a penalty or forfeiture.
(3) The police officer may reduce into writing any statement
made to him in the course of an examination under this section;
and if he does so, he shall make a separate and true record
C of the statement of each such person whose statement he
records.
Provided that statement made under this sub-section may also
be recorded by audio-video electronic means.
162. Statement to police not to be signed- Use of statements in
D evidence.- (1) No statement made by any person to a police
officer in the course of an investigation under this Chapter,
shall, if reduced to writing, be signed by the person making
it; nor shall any such statement or any record thereof, whether
in a police diary or otherwise, or any part of such statement
E or record, be used for any purpose, save as hereinafter
provided, at any inquiry or trial in respect of any offence
under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution
in such inquiry or trial whose statement has been reduced
F into writing as aforesaid, any part of his statement, if duly
proved, may be used by the accused, and with the permission
of the Court, by the prosecution, to contradict such witness
in the manner provided by section 145 of the Indian Evidence
Act , 1872 (1 of 1872); and when any part of such statement
is so used, any part thereof may also be used in the re-
G examination of such witness, but for the purpose only of
explaining any matter referred to in his cross-examination.
(2) Nothing in this section shall be deemed to apply to any
statement falling within the provisions of clause (1) of section
32 of the Indian Evidence Act, 1872 (1 of 1872); or to affect
H the provisions of section 27 of that Act.
TOFAN SINGH v. STATE OF TAMIL NADU 795
[INDIRA BANERJEE, J.]

Explanation.—An omission to state a fact or circumstance in A
the statement referred to in sub-section (1) may amount to
contradiction if the same appears to be significant and
otherwise relevant having regard to the context in which such
omission occurs and whether any omission amounts to a
contradiction in the particular context shall be a question of
B
fact.
163. No inducement to be offered.—(1) No police officer or
other person in authority shall offer or make, or cause to be
offered or made, any such inducement, threat or promise as
is mentioned in section 24 of the Indian Evidence Act, 1872
(1 of 1872). C

(2) But no police officer or other person shall prevent, by
any caution or otherwise, any person from making in the
course of any investigation under this Chapter any statement
which he may be disposed to make of his own free will:
Provided that nothing in this sub-section shall affect the D
provisions of sub-section (4) of section 164.
164. Recording of confessions and statements.—(1) Any
Metropolitan Magistrate or Judicial Magistrate may, whether
or not he has jurisdiction in the case, record any confession
or statement made to him in the course of an investigation E
under this Chapter or under any other law for the time being
in force, or at any time afterwards before the commencement
of the inquiry or trial:
Provided that any confession or statement made under this
sub-section may also be recorded by audio-video electronic F
means in the presence of the advocate of the person accused
of an offence:
Provided further that no confession shall be recorded by a
police officer on whom any power of a Magistrate has been
conferred under any law for the time being in force. G
(2) The Magistrate shall, before recording any such
confession, explain to the person making it that he is not bound
to make a confession and that, if he does so, it may be used
as evidence against him; and the Magistrate shall not record
any such confession unless, upon questioning the person H
796 SUPREME COURT REPORTS [2020] 12 S.C.R.

A making it, he has reason to believe that it is being made
voluntarily.
(3) If at any time before the confession is recorded, the person
appearing before the Magistrate states that he is not willing
to make the confession, the Magistrate shall not authorise
B the detention of such person in police custody.
*******
165. Search by police officer.—(1) Whenever an officer in
charge of a police station or a police officer making an
investigation has reasonable grounds for believing that
C anything necessary for the purposes of an investigation into
any offence which he is authorised to investigate may be found
in any place within the limits of the police station of which he
is in charge, or to which he is attached, and that such thing
cannot in his opinion be otherwise obtained without undue
D delay, such officer may, after recording in writing the grounds
of his belief and specifying in such writing, so far as possible,
the thing for which search is to be made, search, or cause
search to be made, for such thing in any place within the
limits of such station.

E (2) A police officer proceeding under sub-section (1), shall,
if practicable, conduct the search in person.
(3) If he is unable to conduct the search in person, and there
is no other person competent to make the search present at
the time, he may, after recording in writing his reasons for so
F doing, require any officer subordinate to him to make the
search, and he shall deliver to such subordinate officer an
order in writing, specifying the place to be searched, and so
far as possible, the thing for which search is to be made; and
such subordinate officer may thereupon search for such thing
in such place.
G
(4) The provisions of this Code as to search-warrants and the
general provisions as to searches contained in section 100
shall, so far as may be, apply to a search made under this
section.
(5) Copies of any record made under sub-section (1) or sub-
H section (3) shall forthwith be sent to the nearest Magistrate
TOFAN SINGH v. STATE OF TAMIL NADU 797
[INDIRA BANERJEE, J.]

empowered to take cognizance of the offence, and the owner A
or occupier of the place searched shall, on application, be
furnished, free of cost, with a copy of the same by the
Magistrate.
****
168. Report of investigation by subordinate police officer.— B
When any subordinate police officer has made any
investigation under this Chapter, he shall report the result of
such investigation to the officer in charge of the police station.
169. Release of accused when evidence deficient.—If, upon
an investigation under this Chapter, it appears to the officer C
in charge of the police station that there is not sufficient
evidence or reasonable ground of suspicion to justify the
forwarding of the accused to a Magistrate, such officer shall,
if such person is in custody, release him on his executing a
bond, with or without sureties, as such officer may direct, to D
appear, if and when so required, before a Magistrate
empowered to take cognizance of the offence on a police
report, and to try the accused or commit him for trial.
170. Cases to be sent to Magistrate, when evidence is
sufficient.—(1) If, upon an investigation under this Chapter, E
it appears to the officer in charge of the police station that
there is sufficient evidence or reasonable ground as aforesaid,
such officer shall forward the accused under custody to a
Magistrate empowered to take cognizance of the offence upon
a police report and to try the accused or commit him for trial,
or, if the offence is bailable and the accused is able to give F
security, shall take security from him for his appearance
before such Magistrate on a day fixed and for his attendance
from day to day before such Magistrate until otherwise
directed.
172. Diary of proceedings in investigation.—(1) Every police G
officer making an investigation under this Chapter shall day
by day enter his proceedings in the investigation in a diary,
setting forth the time at which the information reached him,
the time at which he began and closed his investigation, the
place or places visited by him, and a statement of the
H
circumstances ascertained through his investigation.
798 SUPREME COURT REPORTS [2020] 12 S.C.R.

A (1A) The statements of witnesses recorded during the course
of investigation under section 161 shall be inserted in the
case diary.
(1B) The diary referred to in sub-section (1) shall be a volume
and duly paginated.
B (2) Any Criminal Court may send for the police diaries of a
case under inquiry or trial in such Court, and may use such
diaries, not as evidence in the case, but to aid it in such inquiry
or trial.
(3) Neither the accused nor his agents shall be entitled to call
C for such diaries, nor shall he or they be entitled to see them
merely because they are referred to by the Court; but, if they
are used by the police officer who made them to refresh his
memory, or if the Court uses them for the purpose of
contradicting such police officer, the provisions of section
D 161 or section 145, as the case may be, of the Indian Evidence
Act, 1872 (1 of 1872), shall apply.
173. Report of police officer on completion of investigation.—
(1) Every investigation under this Chapter shall be completed
without unnecessary delay.
E (1A) The investigation in relation to rape of a child may be
completed within three months from the date on which the
information was recorded by the officer in charge of the police
station.
(2) (i) As soon as it is completed, the officer in charge of the
F police station shall forward to a Magistrate empowered to
take cognizance of the offence on a police report, a report in
the form prescribed by the State Government, stating—
(a) the names of the parties;
(b) the nature of the information;
G
(c) the names of the persons who appear to be acquainted
with the circumstances of the case;
(d) whether any offence appears to have been committed and,
if so, by whom;
H
TOFAN SINGH v. STATE OF TAMIL NADU 799
[INDIRA BANERJEE, J.]

(e) whether the accused has been arrested; A
(f) whether he has been released on his bond and, if so,
whether with or without sureties;
(g) whether he has been forwarded in custody under section
170.
B
(h) whether the report of medical examination of the woman
has been attached where investigation relates to an offence
under section 376, 376A, 376B, 376C 2 [376D or section
376E of the Indian Penal Code (45 of 1860)].
(ii) The officer shall also communicate, in such manner as C
may be prescribed by the State Government, the action taken
by him, to the person, if any, by whom the information relating
to the commission of the offence was first given.
****
(5) When such report is in respect of a case to which section D
170 applies, the police officer shall forward to the Magistrate
along with the report—
(a) all documents or relevant extracts thereof on which the
prosecution proposes to rely other than those already sent to
the Magistrate during investigation; E
(b) the statements recorded under section 161 of all the persons
whom the prosecution proposes to examine as its witnesses.
(6) If the police officer is of opinion that any part of any
such statement is not relevant to the subject-matter of the
proceedings or that its disclosure to the accused is not F
essential in the interests of justice and is inexpedient in the
public interest, he shall indicate that part of the statement
and append a note requesting the Magistrate to exclude that
part from the copies to be granted to the accused and stating
his reasons for making such request. G
(7) Where the police officer investigating the case finds it
convenient so to do, he may furnish to the accused copies of
all or any of the documents referred to in sub-section (5).
(8) Nothing in this section shall be deemed to preclude further
investigation in respect of an offence after a report under H
800 SUPREME COURT REPORTS [2020] 12 S.C.R.

A sub-section (2) has been forwarded to the Magistrate and,
where upon such investigation, the officer in charge of the
police station obtains further evidence, oral or documentary,
he shall forward to the Magistrate a further report or reports
regarding such evidence in the form prescribed; and the
provisions of sub-sections (2) to (6) shall, as far as may be,
B
apply in relation to such report or reports as they apply in
relation to a report forwarded under sub-section (2).”
115. Reference may also be made to Section 190 of the Cr.P.C
set out hereinbelow:-
C “190. Cognizance of offences by Magistrates.—(1) Subject
to the provisions of this Chapter, any Magistrate of the first
class, and any Magistrate of the second class specially
empowered in this behalf under sub-section (2), may take
cognizance of any offence—
D (a) upon receiving a complaint of facts which constitute such
offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a
police officer, or upon his own knowledge, that such offence
E has been committed.
(2) The Chief Judicial Magistrate may empower any
Magistrate of the second class to take cognizance under sub-
section (1) of such offences as are within his competence to
inquire into or try.”
F
116. Chapter XII of the Cr.P.C comprising Sections 154 to 176
relating to information to the police and their powers to investigate have
no application to any inquiry or investigation under the NDPS Act, except
to the extent expressly provided in the NDPS Act. Sections 161 and 162
of the Cr.P.C. are not attracted in the case of any inquiry or investigation
G by the officer designated under the NDPS Act.
117. The provisions of the Cr.P.C. only apply to all warrants issued
and searches and seizures made under the NDPS Act, in so far as they
are not inconsistent with the provisions of the NDPS Act, as provided in
Section 51 of the NDPS Act and to the search of a person, without
H complying with the requirement to take the person to be searched, to the
TOFAN SINGH v. STATE OF TAMIL NADU 801
[INDIRA BANERJEE, J.]

nearest Gazetted Officer or Magistrate, as provided in Section 50(5) of A
the NDPS Act. Of course, the principles of Section 163 of the
Cr.P.C. are implicit in the provisions of the NDPS Act relating to
inquiry and investigation though the said Section may not apply
to such inquiry or investigation. This is because the bar of Article
20(3) of the Constitution of India has to be read into every statute
B
in spirit and substance. There can be no question of obtaining
any statement by any inducement, promise or threat.
118. The NDPS Act as observed above, is a complete code. A
comparison of the various provisions of Chapter XII of the Cr.P.C with
those of Chapter V of the NDPS Act also makes it clear that the provisions
in Chapter V of the NDPS Act are independent of, and not controlled by C
the provisions of the Cr.P.C except as provided in Sections 50(5) and 51
of the NDPS Act. There are differences between the procedure of
inquiry/investigation under Chapter V of the NDPS Act and the procedure
of investigation and/or enquiry under the Cr.P.C.
119. Some of the notable differences in the procedure of inquiry/ D
investigation under Chapter V of the NDPS Act with the procedure of
inquiry/investigation under the Cr.P.C are as follows:
(i) Under Section 68 of the NDPS Act, the name of the informant
is not to be disclosed. The officer who takes down the information
becomes the complainant. However, under Section 154 of the E
Cr.P.C information is required to be signed by the person giving it.
(Section 154(1) Cr.P.C)
(ii) The power under Section 41(2) of the NDPS Act, to authorize
arrest or search under the said Section as also the power of entry,
search seizure and arrest under Section 42 and other similar F
provisions is conditional upon reason to believe from personal
knowledge or information given by any person and taken in writing
that any person has committed an offence punishable under this
Act, or that any narcotic drug or psychotropic substance or
controlled substance in respect of which any offence under this G
Act has been committed, or any document or other article which
may furnish evidence of the commission of such offence or any
illegally acquired property or any document or other article which
may furnish evidence of holding any illegally acquired property
which is liable for seizure or freezing or forfeiture under Chapter
H
802 SUPREME COURT REPORTS [2020] 12 S.C.R.

A VA of the NDPS Act, is kept or concealed in any building,
conveyance or place. On the other hand, the powers of the police
under Section 165 of the Cr.P.C to make a search or authorize a
search are much wider.
(iii) In the case of an inquiry/investigation under the Cr.P.C it is
B not necessary to send a copy of the information as recorded, with
the grounds of belief of the necessity to take action, to a superior
officer.
(iv) The power to conduct personal search under the NDPS Act
is circumscribed by Section 50. If the person to be searched, so
C requires, he has to be taken to the nearest Magistrate. As observed
above, Section 50(5) specifically requires searches of person to
be made under Section 100 of the Cr.P.C. only in the circumstances
specified in the said provisions.
(v) Section 53A of the NDPS Act, which expressly provides that
D a statement made and signed by a person before any officer
empowered under Section 53 for the investigation of offences,
during the course of any inquiry or proceedings by such officer,
shall be relevant for the purpose of proving in any prosecution
under the NDPS Act, the truth of the facts which it contains, in
the circumstances stated in the said Section, is patently contrary
E to and/or inconsistent with Sections 161/162 of the Cr.P.C. Under
Section 162, a statement made to a police officer, if taken down in
writing, is not to be signed by the person making it, and not used
for any purpose in any inquiry or trial in Court, except to confront
him if he appears as a witness and gives evidence to the contrary.
F Section 53 A (2) makes it abundantly clear that the provision of
sub-section (1) of Section 53A, to the extent feasible, applies
to all proceedings under the NDPS Act or the Rules or
orders thereunder, other than proceedings before a Court,
as they apply in relation to a proceeding in Court.

G (vi) Section 173(1) read with Section 173(2) of the Cr.P.C makes
it obligatory for a police officer to complete an investigation and
file a report to the Magistrate empowered to take cognizance.
Under the NDPS Act no report is required to be submitted to the
Special Court, or to any Magistrate, after completion of an inquiry
and/or investigation of an offence under the said Act. Officers
H
TOFAN SINGH v. STATE OF TAMIL NADU 803
[INDIRA BANERJEE, J.]

under the NDPS Act do not have the power to submit a report to A
the Magistrate/Special Court in terms of Section 173 of Cr.P.C.
120. Section 36A(1)(d) of the NDPS Act provides that “a Special
Court may, upon perusal of police report of the facts constituting an
offence under the NDPS Act or upon complaint made by an officer of
the Central Government or a State Government authorised in his behalf, B
take cognizance of that offence, without the accused being committed
to it for trial”. Section 36A (1)(d) is similar to Section 190 of the Cr.P.C.
121. A complaint, as defined in Section 2(d) of the Cr.P.C., means
any allegation made to a Magistrate orally or in writing, to enable the
Magistrate to take action under the Cr.P.C. A complaint need not be on C
a Police Report. However, as per the Explanation to Section 2(d), a
report of a police officer, which discloses a cognizable offence is to be
deemed to be a complaint and the police officer who made the complaint,
shall be deemed to be the complainant.
122. An inquiry and/or investigation is conducted under the NDPS D
Act to enable the concerned officer/officers to satisfy themselves,
whether the information gathered or the materials obtained in course of
such inquiry/investigation warrant the filing of a complaint.
123. If upon inquiry/investigation, the authorities concerned find
that there are materials in the form of any statements, documents, or E
other things which show prima facie that an offence has been committed
under the NDPS Act, a complaint may be made. If the information
gathered and/or materials obtained do not make out an offence a complaint
may not be made. Similarly a complaint may not be made, if upon inquiry/
investigation, the information of an offence received by the appropriate
officer is found false or frivolous. F
124. Section 36A(1)(d) enables the police to file a report, before
the Special Court, of facts constituting an offence under the NDPS Act,
which, as per the definition of police report in Section 2(d) of the Cr.P.C.,
means a report forwarded under Section 173(2) of the Cr.P.C. Such a
police report is deemed to be a complaint. Such police report can be G
filed after an investigation under Chapter XII of the Cr.P.C. There is no
provision in the NDPS Act, which makes it incumbent upon the concerned
officers who make any inquiry/investigation under the NDPS Act, to
prepare or file any report.
H
804 SUPREME COURT REPORTS [2020] 12 S.C.R.

A 125. If the police investigate any offence under the NDPS Act
and submit a report before the Special Court, all the relevant provisions
of the Cr.P.C. would have to be complied with, including in particular
Sections 161, 162, 163, 164 and 173. A statement before the police can
neither be signed nor relied upon for any purpose in a Court of law,
except for the purpose specified in the said section, that is, inter alia to
B
confront the person making the statement in cross examination in the
trial.
126. The Legislature has in its wisdom differentiated between a
police report, which is deemed to be a complaint, and a complaint made
by an officer of the Central or State Government, authorized in this
C behalf. It is not for this Court to question the wisdom of the Legislature.
The fact that the Special Court may take cognizance of an offence,
upon a complaint made by an officer of the Central or State Government,
authorized in this behalf, and not a report, as required in case of the
police, also shows that an inquiry or investigation under the NDPS Act is
D not to be treated in the same way, as a police investigation into an offence.
127. The argument advanced by the appellants represented by
Mr. Nagamuthu, that officers invested under Section 53 of the NDPS
Act with the powers of an officer in charge of a Police Station for
investigation of an offence under the NDPS Act would necessarily have
E to file a police report under Section 173 of the Cr.P.C. before a Magistrate,
in respect of an offence punishable with imprisonment of less than three
years, which is not triable by the Special Court, but by a Magistrate,
since Section 36A(1)(d) would not apply, is flawed. In case of an offence
punishable with imprisonment of less than three years, triable by a
Magistrate, the authorized officer under the NDPS Act would have to
F file a complaint under Section 190(1)(a) of the Cr.P.C.
128. The expression “police” is ordinarily understood to mean
that executive civil force of the State, entrusted with the duty of
maintenance of public order, and also the prevention and detection of
crime.
G
129. The expression “police” or “police officer” is not defined
either in the Evidence Act 1872 or in the Cr.P.C. Police officers are
governed inter alia by the Police Act 1861, enacted to make the police
an effective instrument for the prevention and detection of crime.
130. Some of the relevant provisions of the Police Act 1861 are
H
set out hereinbelow:
TOFAN SINGH v. STATE OF TAMIL NADU 805
[INDIRA BANERJEE, J.]

5. Powers of Inspector-General—Exercise of powers.—The A
Inspector General of Police shall have the full powers of a
Magistrate throughout the general police district; but shall
exercise those powers subject to such limitation as may from
time to time be imposed by the [State Government].
xxx xxx xxx B
8. Certificates to police-officers.—Every police-officer
appointed to the police force other than an officer mentioned
in section 4 shall receive on his appointment a certificate in
the form annexed to this Act under the seal of the Inspector-
General or such other officer as the Inspector-General shall C
appoint by virtue of which the person holding such certificate
shall be vested with the powers, functions and privileges of a
police officer.
xxx xxx xxx
20. Authority to be exercised by police officers.—Police- D
officers, enrolled under this Act shall not exercise any
authority, except the authority provided for a police officer
under this Act and any Act which shall hereafter be passed
for regulating criminal procedure.
xxx xxx xxx E
23. Duties of police officers.- It shall be the duty of every
police-officer promptly to obey and execute all filers and
warrants lawfully issued to him by any competent authority;
to collect and communicate intelligence affecting the public
peace; to prevent the commission of offences and public F
nuisances, to detect and bring offenders to justice and to
apprehend all persons whom he is legally authorised to
apprehend and for whose apprehension sufficient ground
exists; and it shall be lawful for every police officer, for any
of the purposes mentioned in this section, without a warrant,
G
to enter and inspect any drinking-shop gaming-house or other
place of resort of loose and disorderly characters.
xxx xxx xxx
24. Police-officers may lay Information, etc.—It shall be
lawful for any police officer to lay any information before a H
806 SUPREME COURT REPORTS [2020] 12 S.C.R.

A Magistrate, and to apply for a summons, warrant, search
warrant or such other legal process as may by law issue
against any person committing an offence.”
131. The Police Act, 1888, an Act to amend the law relating to the
regulation of Police, inter alia, provide:-
B “3. Employment of police-officers beyond the State to which
they belong.- Notwithstanding anything in any of the Acts
mentioned or referred to in the last foregoing section, but
subject to any orders which the [Central Government] may
make in this behalf, a member of the [police force] of any
C [State] may discharge the functions of a police-officer in any
part of [any other State] and shall, while so discharging such
functions be deemed to be a member of the [police-force] of
that part and be vested with the powers, functions and
privileges and be subject to be liabilities, of a police officer
belonging to [that police-force].
D
4. Consent of State Government to exercise powers and
jurisdiction.— Nothing in this Act shall be deemed to enable
the police of one State to exercise powers and jurisdiction in
any area within another State, not being a railway area,
without the consent of the Government of that other State.”
E
132. The Police Act 1949, enacted for the constitution of a general
police-district embracing two or more Union Territories, and for the
establishment of a police force therefor, extends the application of the
Police Act, 1861 to police officers in Union Territories.

F 133. There are several other statutes such as the Delhi Special
Police Establishment Act 1947, enacted to investigate into offences and/
or class of offences notified under the said Act, the Central Reserve
Police Act, 1949, the Bombay Police Act 1951, the Calcutta Police Act
1866, the Bengal Police Act, 1869, the Madras City Police Act 1888, the
Assam Rifles Act, the Nagaland Armed Police Act, 1966, to name a
G few.
134. The powers of an Officer in Charge of a Police Station are
not exhaustively specified in the Cr.P.C. in any specific chapter or any
set of provisions grouped together. The duties and powers of an Officer
in Charge of a Police Station are implicit in interspersed provisions of
H the Cr.P.C., many of which relate to the duties and powers of all police
TOFAN SINGH v. STATE OF TAMIL NADU 807
[INDIRA BANERJEE, J.]

officers in general. It is however, axiomatic, that the Officer in Charge A
of a Police Station is, as a police officer, entitled to exercise all the
powers of a police officer, whether under any of the Police Acts, the
Cr.P.C or any other law, apart from the additional powers for discharge
of duties and responsibilities as Officer in Charge of a Police Station.
135. Under Section 37 of the Cr.P.C. every person is bound to B
assist a police officer reasonably demanding his aid (i) in taking or
preventing the escape of any other person, the police is authorized to
arrest (ii) to prevent the breach of peace or (iii) in the prevention of any
injury attempted to be committed to any railway, public property etc.
136. Section 41 of the Cr.P.C. confers on police officers, wide C
powers of arrest without an order of a Magistrate or warrant. The power
extends to the arrest of any person, if amongst other reasons, the police
officer has reason to believe on the basis of any complaint, information,
or suspicion that such person has committed a cognizable offence
punishable with imprisonment which may be less than or may extend
upto seven years. Such powers can be exercised: D

(i) if the police officer is satisfied that such arrest is necessary—
(a) to prevent such person from committing any further
offence; or
(b) for proper investigation of the offence; or E
(c) to prevent such person from causing the evidence of
the offence to disappear or tampering with such evidence
in any manner; or
(d) to prevent such person from making any inducement,
F
threat or promise to any person acquainted with the facts
of the case so as to dissuade him from disclosing such facts
to the Court or to the police officer; or
(e) unless such person is arrested, his presence in the Court
whenever required cannot be ensured,
G
(ii) against whom credible information has been received that
he has committed a cognizable offence punishable with
imprisonment for a term which may extend to more than seven
years whether with or without fine or with death sentence
and the police officer has reason to believe on the basis of
H
808 SUPREME COURT REPORTS [2020] 12 S.C.R.

A that information that such person has committed the said
offence;
(iii) in whose possession anything is found which may
reasonably be suspected to be stolen property and who may
reasonably be suspected of having committed an offence with
B reference to such thing; or
(iv) who obstructs a police officer while in the execution of
his duty, or who has escaped, or attempts to escape, from
lawful custody.
137. The Police officers have further powers and duties as specified
C in Sections 47, 48, 51, 52, 91, 129 and 133 of the Cr.P.C., which include
the power of search of any place entered by a person sought to be
arrested (Section 47), the power to compel production of documents or
other things (Section 91), dispersal of any assembly likely to cause
disturbance of public peace including arrest and action for punishment
D of those who form part of it (Section 129). Under Section 133 of the
Cr.P.C. an order of a Magistrate for removal of obstruction or nuisance
could be based on a police report. This could even include an order to
stop any construction, to remove construction, to desist from carrying on
any trade or business etc.

E 138. Chapter XI of the Cr.P.C. empowers the police to take action
to prevent the commission of a cognizable offence. Section 151 of the
Cr.P.C. confers on police officers the power of arrest without warrant
or orders of a Magistrate, to prevent the commission of a cognizable
offence. These powers are capable of being misused.

F 139. The police officers have enormous powers. The powers of
a police officer are far greater than those of an officer under the NDPS
Act invested with the powers of an Officer in Charge of a Police Station
for the limited purpose of investigation of an offence under the NDPS
Act. The extensive powers of the police, of investigation of all kinds of
offences, powers to maintain law and order, remove obstruction and
G even arrest without warrant on mere suspicion, give room to police
officers to harass a person accused or even suspected of committing an
offence in a myriad of ways. The police are, therefore, in a dominating
position to be able to elicit statements by intimidation, by coercion, or by
threats either direct or veiled. The powers of NDPS officers being
restricted to prevention and detection of crimes under the NDPS Act
H
TOFAN SINGH v. STATE OF TAMIL NADU 809
[INDIRA BANERJEE, J.]

and no other crime, they do not have the kind of scope that the police A
have, to exert pressure to extract tailored statements.
140. To summarize, the provisions of the Cr.P.C do not apply to
any inquiry or investigation or other proceeding under the NDPS Act,
except to the extent expressly provided by the NDPS Act, in view of
Section 4(2) read with Section 5 of the Cr.P.C. B
141. Officers under the NDPS Act have the power to call for
information, to require production of documents and other things, to
examine persons and record their statements by virtue of the powers
conferred by Sections 53 and 67 read with Section 53A of the NDPS
Act. C
142. As Officers empowered under Section 53 have all the
powers of an Officer in Charge of a Police Station to conduct investigation
of an offence under the NDPS Act, which includes the powers of calling
for information, examining persons or requiring production of documents
and other things, such powers have expressly been conferred by Section D
67 to authorised officers referred to in Section 42, who may or may not
be invested with powers under Section 53.
143. Officers under the NDPS Act, invested under Section 53
with the powers of an Officer in Charge of a Police Station, for the
purpose of investigation of an offence under the NDPS Act, do not E
exercise all the powers of police officers. They do not have the power
to file a police report under Section 173 Cr.P.C which might be deemed
a complaint. There is no provision in the NDPS Act which requires any
officer investigating an offence under the said Act or otherwise making
an inquiry under the said Act to file a report.
F
144. Officers under the NDPS Act not being police officers,
Sections 161/162 of the Cr.P.C have no application to any statement
made before any officer under the NDPS Act, in the course of any
inquiry or other proceedings under the NDPS Act.
145. In any case, Section 53A is clearly contrary to and thus
G
overrides Section 162 of the Cr.P.C. While Section 162(1) of the Cr.P.C.
provides that no statement made by any person to a police officer, when
reduced to writing shall be signed by the person making it, or used for
any purpose, save as provided in the proviso to the said section, that is,
to confront the person making the statement, if he gives evidence as a
witness, Section 53A(1) provides that “a statement made and signed H
810 SUPREME COURT REPORTS [2020] 12 S.C.R.

A by a person before any officer empowered under Section 53 for the
investigation of offences, during the course of any inquiry or
proceedings by such officer, shall be relevant for the purpose of
proving, in any prosecution for an offence under this Act” in certain
circumstances specified in the said section.
B 146. The statements made in any inquiry or investigation may be
recorded in writing and even signed by the person making it. In the
absence of any provision similar to Section 162, in the NDPS Act, a
statement made before an officer under the NDPS Act in the course of
any inquiry, investigation or other proceedings, may be tendered in
evidence and proved in a trial for prosecution of an offence under the
C NDPS Act in accordance with law. A statement confessional in nature
is in the genre of extra judicial confessions.
147. Section 24 of the Indian Evidence Act, 1872 provides as
follows:-
D “24. Confession caused by inducement, threat or promise,
when irrelevant in criminal proceeding.–– A confession made
by an accused person is irrelevant in a criminal proceeding,
if the making of the confession appears to the Court to have
been caused by any inducement, threat or promise having
reference to the charge against the accused person,
E proceeding from a person in authority and sufficient, in the
opinion of the Court, to give the accused person grounds
which would appear to him reasonable for supposing that by
making it he would gain any advantage or avoid any evil of
a temporal nature in reference to the proceedings against
F him.”
148. A confession made by an accused person is irrelevant in a
criminal proceeding, if it appears to the Court that the confessions may
have been elicited by any inducement, threat or promise from a person
in authority and sufficient, in the opinion of the Court, to give the accused
G person reasonable grounds, for supposing that by making the confession,
he would gain any advantage or avoid any disadvantage in respect of
proceedings against him.
149. As observed by this Court in the State of Rajasthan v. Raja
Ram13"confessions may be divided into two classes i.e. judicial and
13
H (2003) 8 SCC 180
TOFAN SINGH v. STATE OF TAMIL NADU 811
[INDIRA BANERJEE, J.]

extra-judicial. Judicial confessions are those which are made before A
a Magistrate or a Court in the course of judicial proceedings. Extra-
judicial confessions are those which are made by the party elsewhere
than before a Magistrate or Court. Extra-judicial confessions are
generally those that are made by a party to or before a private
individual which includes even a judicial officer in his private
B
capacity. It also includes a Magistrate who is not especially
empowered to record confessions under Section 164 of the Code or
a Magistrate so empowered but receiving the confession at a stage
when Section 164 does not apply. As to extra-judicial confessions,
two questions arise: (i) were they made voluntarily and (ii) are they
true?”. C
xxx xxx xxx
“An extra-judicial confession, if voluntary and true and made
in a fit state of mind, can be relied upon by the Court. The confession
will have to be proved like any other fact. The value of the evidence
as to confession, like any other evidence, depends upon the veracity D
of the witness to whom it has been made. The value of the evidence
as to the confession depends on the reliability of the witness who
gives the evidence. It is not open to any court to start with a
presumption that extra-judicial confession is a weak type of
evidence. It would depend on the nature of the circumstances, the E
time when the confession was made and the credibility of the witnesses
who speak to such a confession.”
xxx xxx xxx
“If the evidence relating to extra-judicial confession is found
credible after being tested on the touchstone of credibility and F
acceptability, it can solely form the basis of conviction. The
requirement of corroboration as rightly submitted by the learned
counsel for the respondent-accused, is a matter of prudence and
not an invariable rule of law.”
150. In Gura Singh v. State of Rajasthan14this Court held:- G
“6. It is settled position of law that extrajudicial confession,
if true and voluntary, it can be relied upon by the court to
convict the accused for the commission of the crime alleged.
14
(2001) 2 SCC 205 H
812 SUPREME COURT REPORTS [2020] 12 S.C.R.

A Despite inherent weakness of extrajudicial confession as an
item of evidence, it cannot be ignored when shown that such
confession was made before a person who has no reason to
state falsely and to whom it is made in the circumstances which
tend to support the statement. Relying upon an earlier
judgment in Rao Shiv Bahadur Singh v. State of Vindhya
B
Pradesh [AIR 1954 SC 322 : 1954 SCR 1098 : 1954 Cri LJ
910] this Court again in Maghar Singh v. State of Punjab
[(1975) 4 SCC 234 : 1975 SCC (Cri) 479 : AIR 1975 SC
1320] held that the evidence in the form of extrajudicial
confession made by the accused to witnesses cannot be always
C termed to be a tainted evidence. Corroboration of such
evidence is required only by way of abundant caution. If the
court believes the witness before whom the confession is made
and is satisfied that the confession was true and voluntarily
made, then the conviction can be founded on such evidence
alone. In Narayan Singh v. State of M.P. [(1985) 4 SCC 26 :
D
1985 SCC (Cri) 460 : AIR 1985 SC 1678] this Court cautioned
that it is not open to the court trying the criminal case to start
with a presumption that extrajudicial confession is always a
weak type of evidence. It would depend on the nature of the
circumstances, the time when the confession is made and the
E credibility of the witnesses who speak for such a confession.
The retraction of extrajudicial confession which is a usual
phenomenon in criminal cases would by itself not weaken the
case of the prosecution based upon such a confession. In
Kishore Chand v. State of H.P. [(1991) 1 SCC 286 : 1991
SCC (Cri) 172 : AIR 1990 SC 2140] this Court held that an
F
unambiguous extrajudicial confession possesses high
probative value force as it emanates from the person who
committed the crime and is admissible in evidence provided it
is free from suspicion and suggestion of any falsity. However,
before relying on the alleged confession, the court has to be
G satisfied that it is voluntary and is not the result of inducement,
threat or promise envisaged under Section 24 of the Evidence
Act or was brought about in suspicious circumstances to
circumvent Sections 25 and 26. The court is required to look
into the surrounding circumstances to find out as to whether
such confession is not inspired by any improper or collateral
H
TOFAN SINGH v. STATE OF TAMIL NADU 813
[INDIRA BANERJEE, J.]

consideration or circumvention of law suggesting that it may A
not be true. All relevant circumstances such as the person to
whom the confession is made, the time and place of making
it, the circumstances in which it was made have to be
scrutinised. To the same effect is the judgment in Baldev Raj
v. State of Haryana [1991 Supp (1) SCC 14 : 1991 SCC (Cri)
B
659 : AIR 1991 SC 37] . After referring to the judgment in
Piara Singh v. State of Punjab [(1977) 4 SCC 452 : 1977
SCC (Cri) 614 : AIR 1977 SC 2274] this Court in Madan
Gopal Kakkad v. Naval Dubey [(1992) 3 SCC 204 : 1992
SCC (Cri) 598 : JT (1992) 3 SC 270] held that the extrajudicial
confession which is not obtained by coercion, promise of C
favour or false hope and is plenary in character and voluntary
in nature can be made the basis for conviction even without
corroboration.”
151. It is one thing to say that a piece of evidence is inadmissible
and another thing to assess two or more pieces of evidence on their D
probative value. A confession before a Judicial Magistrate under Section
164 of the Cr.PC may have higher probative value than other confessions.
However, on that parameter alone other confessions for example, extra
judicial confession cannot be rendered inadmissible in law.
152. It is true that some statutes such as Terrorist and Disruptive E
Activities (Prevention) Act, 1987 (TADA), Prevention of Terrorism Act,
2002 (POTA) and Maharashtra Control of Organised Crime Act, 1999
(MCOCA) expressly empower the authorized officers to record
confession. Investigation under those statutes is however carried out by
police officer, as pointed out by the learned Addl. Solicitor General Mr.
Aman Lekhi. F

153. Whether the officer concerned is duly empowered and/
or authorised to make an enquiry/investigation, whether any
statement or document has improperly been procured, etc. are
factors which would have to be examined by the Court on a case
to case basis. Needless to mention that , having regard to all G
relevant facts and circumstances, the Court may not base
conviction solely on a statement made in an inquiry which is
confessional, in the absence of other materials with which the
statement can be linked. It is for the Special Court to weigh the
statement and assess its evidentiary value, having regard to all H
814 SUPREME COURT REPORTS [2020] 12 S.C.R.

A relevant factors. All statements and documents tendered in
evidence have to be proved at the trial in accordance with law.
154. Section 25 of the Evidence Act reads “No confession made
to a police officer shall be proved against a person accused of any
offence”, and Section 26 reads “No confession made by any person
B whilst he is in the custody of a police officer, unless it be made in the
immediate presence of a Magistrate, shall be proved as against such
person”. Thus, a confession made by any person to a police officer, or
while in police custody, unless made in the immediate presence of a
Magistrate cannot be tendered in evidence, against a person accused of
an offence.
C
155. For a long time, there had been differences of opinion in
judicial verdicts, in construing the expression ‘police officer‘ in Section
25 of the Evidence Act. While the expression ‘police officer’ has in
some judgments been construed to include officers, whether or not police
officers, but vested with the powers of a police officer, in respect of
D offences under specific enactments, other judgments have construed
the expression to mean a police officer as ordinarily understood, and not
officers of other departments, with authority to exercise the powers of a
police officer for investigation of offences under special enactments.
156. In Amin Sharif v. Emperor15, a full Bench of Calcutta High
E Court held that an officer other than a police officer, who in the conduct
of investigation of an offence exercise the powers conferred by the
Cr.P.C., upon an Officer in Charge of a police station for investigation of
a cognizable offence, is a police officer within the meaning of Section 25
of the Evidence Act. Similar view was taken by the Full Bench of
F Bombay High Court in Nanoo Sheikh Ahmed and Another v.
Emperor 16
157. On the other hand in Radha Kishun Marwari v. King-
Emperor17a Special Bench of Patna High Court took a contrary view
and held that Section 25 of the Evidence Act applies to a police officer
G alone and not any other person invested with powers of a police officer
for a limited purpose. Confession to an Excise Inspector with power to
search and investigate was held to be inadmissible in evidence.

15
AIR 1934 Cal 580
16
AIR 1927 Bom 4
17
H AIR 1932 Patna 293
TOFAN SINGH v. STATE OF TAMIL NADU 815
[INDIRA BANERJEE, J.]

158. In the State of Punjab v. Barkat Ram18, the majority of the A
judges on the Bench held (Subba Rao, J., dissenting) that a Customs
Officer under the Land Customs Act 19 of 1924 or under the Sea
Customs Act 8 of 1878 is not a police-officer for the purpose of Section
25 of the Indian Evidence Act, 1872, and that conviction of the offender
on the basis of his statements to the Customs Officer for offences under
B
Section 167(8) of Sea Customs Act, 1878, and Section 23(1) of the
Foreign Exchange Regulation Act, 1947, is not illegal. Raghubar Dayal,
J., who delivered the majority judgment of this Court observed:
“... that the powers which the police officers enjoy are powers
for the effective prevention and detection of crime in order to
maintain law and order. C

The powers of customs officers are really not for such
purpose. Their powers are for the purpose of checking the
smuggling of goods and the due realisation of customs duties
and to determine the action to be taken in the interests of the
revenues of the country by way of confiscation of goods on D
which no duty had been paid and by imposing penalties and
fines”.
159. In Barkat Ram(supra), Dayal, J. speaking for the majority
observed.
E
18.We now refer to certain aspects which lead us to consider
that the expression “police officer” has not such a wide
meaning as to include persons on whom certain police powers
are conferred. The object of enacting Section 25 of the
Evidence Act, whose provisions formerly formed part of the
Code of Criminal Procedure, was to exclude from evidence F
confessions made to the regular police which had a very bad
reputation for the methods it employed in investigation,
especially in forcibly extracting confessions with the object
of securing a conviction. The past conduct of the members of
the police organization justified the provision. It is too much G
to suppose that the legislature did intend that all persons,
who may have to investigate or arrest persons or seize articles
in pursuance of any particular law of which at the time it had
no conception, should be considered to be so unreliable that
18
AIR 1962 SC 276 H
816 SUPREME COURT REPORTS [2020] 12 S.C.R.

A any confession made to them must be excluded just as a
confession made to a regular police officer. If it could not
contemplate the later creation of offences or of agencies to
take action in respect to them under future legislation, it could
not have intended the expression “police officer” to include
officers entrusted in future with the duty of detecting and
B
preventing smuggling and similar offences with the object of
safeguarding the levying and recovery of Customs duties. If
the legislature had intended to use the expression “police
officer” for such a wide purpose, it would have used a more
comprehensive expression. It could have expressed its intention
C more clearly by making any confession made to any officer
whose duty is to detect and prevent the commission of offences
inadmissible in evidence.”
160. In Raja Ram Jaiswal v. State of Bihar19, the majority
(Raghubar Dayal, J. dissenting) held that the test for determining whether
D a person was a “police officer” for the purpose of Section 25 of the
Evidence Act would be whether the powers of a police officer which
were conferred on him, or which were exercisable by him because he
was deemed to be an officer in charge of a Police Station, established a
direct or substantial relationship with the prohibition enacted by Section
25 of the Evidence Act. This Court held that the object of enacting
E Section 25 of the Evidence Act was to eliminate from consideration
confession to an officer, who by virtue of his position could extract by
force, torture or inducement, a confession. If the power of investigation
established a direct relationship with prohibition under Section 25 of the
Evidence Act, the mere fact that the officer might possess some other
F powers under some other law, would not make him any less a police
officer, for the purpose of Section 25 of the Evidence Act.
161. In Raja Ram Jaiswal (supra) this Court found it difficult to
draw a rational distinction between a confession recorded by a police
officer strictly so called, and the evidence recorded by an Excise Officer,
G acting under Section 78(3) of the Bihar and Orissa Excise Act, 1915,
who was deemed to be a police officer. Section 78(3) provided that an
Excise Officer empowered under Section 77(2) of the Bihar and Orissa
Excise Act, 1915 shall for the purpose of Section 156 of the Cr.P.C., be
deemed to be an officer in charge of a Police Station with respect to the
19
H AIR 1964 SC 828
TOFAN SINGH v. STATE OF TAMIL NADU 817
[INDIRA BANERJEE, J.]

area to which his appointment as an Excise Officer extends. This Court, A
therefore found such an officer to be in the same position as an officer
in charge of a Police Station, making an investigation under Chapter
XIV of the Cr.P.C.
162. This Court held that officers under the Bihar and Orissa
Excise Act, 1915 not only had the duty to prevent commission of offences B
under the said Act but were entrusted with the duty of detection of
offences under the said Act, as well and for these purposes they were
empowered in all respects as an officer in charge of a Police Station.
163. Drawing a distinction with officers under the Sea Customs
Act, 1878 and/or the Customs Act, 1962, the Court held that though the C
Customs Officer can make an inquiry, he has no power to investigate
into offences under Section 156 of the Cr.P.C. Whatever power he
exercises are expressly those set out in Chapter XVII which might be
analogous to those of a police officer under the Cr.P.C but not identical
with those of a police officer. Thus , the Customs Officer is not entitled
to submit a report to a Magistrate under Section 190 of the Cr.P.C. with D
a view that cognizance of the offence be taken by the Magistrate. Section
187(a) of the Sea Customs Act specifically provides that cognizance of
an offence under the Sea Customs Act can be taken only upon a complaint
in writing made by the Customs Officer or other officer of the Customs,
not below the rank of an Assistant Collector of Customs authorised by E
the Chief Customs Officer.
164. It is true that in drawing a distinction between an Excise
Officer under the Bihar and Orissa Excise Act and a Custom Officer
under the Sea Customs Act, this Court noticed the following differences.
(i) The Excise Officer does not exercise any judicial power as the F
Customs Officer does under the Sea Customs Act, 1878.
(ii) The Customs Officer is not deemed to be an Officer in charge
of a police station and therefore can exercise no powers under the Cr.P.C.
and certainly not those of an Officer in charge of a police station.
G
(iii) Though he can make an inquiry he has no power to investigate
into an offence under Section 156 of the Cr.P.C. Whatever powers he
exercises are expressly set out in the Sea Customs Act.
(iv) Though some of those powers set out in Chapter XVII might
be analogous to those of a police officer under the Cr.P.C., they were
H
818 SUPREME COURT REPORTS [2020] 12 S.C.R.

A not identical to those of a police officer. The Customs Officer is not
entitled to submit a report to a Magistrate under Section 190 of the
Cr.P.C. Section 187(a) of the Sea Customs Act specially provides that
cognizance of an offence under the Sea Customs Act can be taken upon
a complaint in writing made by the Customs Officer or other officer of
the Customs of a specified rank. ..
B
165. In Badku Joti Savant v. State of Mysore20the question of
whether a Central Excise Officer under the Central Excise and Salt Act
1944 was a police officer within the meaning of Section 25 of the Evidence
Act, fell for consideration before a five-Judge Constitution Bench, in the
context of Section 21 of the Central Excise and Salt Act, 1944 (now
C known as the Central Excise Act, 1944), set out hereinbelow for
convenience:
“21. (1) When any person is forwarded under Section 19 to
a Central Excise Officer empowered to send persons so
arrested to a Magistrate, the Central Excise Officer shall
D proceed to inquire into the charge against him.
(2) For this purpose the Central Excise Officer may exercise
the same powers and shall be subject to the same provisions
as the officer incharge of a police station may exercise and is
subject to under the Code of Criminal Procedure, 1898, when
E investigating a cognizable case:
Provided that….”
166. In Badku Joti Savant (supra) the Constitution Bench
distinguished Raja Ram Jaiswal (supra) held:
F “9. ….It is true that sub-section (2) confers on the Central
Excise Officer under the Act the same powers as an officer
incharge of a police station has when investigating a
cognizable case;…….A police officer for purposes of clause
(b) above can in our opinion only be a police officer properly
so-called as the scheme of the Code of Criminal Procedure
G
shows and it seems therefore that a Central Excise Officer
will have to make a complaint under clause (a) above if he
wants the Magistrate to take cognizance of an offence, for
example, under Section 9 of the Act. Thus though under sub-
20
H AIR 1966 SC 1746
TOFAN SINGH v. STATE OF TAMIL NADU 819
[INDIRA BANERJEE, J.]

section (2) of Section 21 the Central Excise Officer under the A
Act has the powers of an officer incharge of a police station
when investigating a cognizable case, that is for the purpose
of his inquiry under sub-section (1) of Section 21. Section 21
is in terms different from Section 78 (3) of the Bihar and Orissa
Excise Act, 1915 which came to be considered in Raja Ram
B
Jaiswal case (1964) 2 SCR 752 and which provided in terms
that “for the purposes of Section 156 of the Code of Criminal
Procedure, 1898, the area to which an excise officer
empowered under Section 77, sub-section (2), is appointed
shall be deemed to be a police-station, and such officer shall
be deemed to be the officer incharge of such station”. It C
cannot therefore be said that the provision in Section 21 is on
par with the provision in Section 78 (3) of the Bihar and Orissa
Excise Act. All that Section 21 provides is that for the purpose
of his enquiry, a Central Excise Officer shall have the powers
of an officer incharge of a police station when investigating
D
a cognizable case. But even so it appears that these powers
do not include the power to submit a charge-sheet under
Section 173 of the Code of Criminal Procedure for unlike the
Bihar and Orissa Excise Act, The Central Excise Officer is
not deemed to be an officer incharge of a police station.
xxxxx xxxxx E

11. In any case unlike the provisions of Section 78(3) of the
Bihar and Orissa Excise Act, 1915, Section 21(2) of the Act
does not say that the Central Excise Officer shall be deemed
to be an officer-in-charge of a police station and the area
under his charge shall be deemed to be a police station. All F
that Section 21 does is to give him certain powers to aid him
in his enquiry. In these circumstances we are of opinion that
even though the Central Excise Officer may have when making
enquiries for purposes of the Act powers which an officer
incharge of a police station has when investigating a G
cognizable offence, he does not thereby become a police
officer even if we give the broader meaning to those words in
Section 25 of the Evidence Act.”

H
820 SUPREME COURT REPORTS [2020] 12 S.C.R.

A 167. In Romesh Chandra Mehta v. State of West Bengal21 five
judge Constitution Bench of this Court considered the question of whether
a Customs Officer under the Sea Customs Act 1878, was a police officer
within the meaning of Section 25 of the Evidence Act and whether
confessional statements made to the Customs Officer were inadmissible
in evidence. The Constitution Bench held:
B
“5. ….. The broad ground for declaring confessions made to
a police officer inadmissible is to avoid the danger of
admitting false confessional statements obtained by coercion,
torture or ill-treatment. But a Customs Officer is not a member
of the police force. He is not entrusted with the duty to maintain
C law and order. He is entrusted with powers which specifically
relate to the collection of customs duties and prevention of
smuggling. There is no warrant for the contention raised by
counsel for Mehta that a Customs Officer is invested in the
enquiry under the Sea Customs Act with all the powers which
D a police officer in charge of a police station has under the
Code of Criminal Procedure...”
10. Counsel for Mehta contended that a Customs Officer who
has power to detain, to arrest, to produce the person arrested
before a Magistrate, and to obtain an order for remand and
E keep him in his custody with a view to examine the person so
arrested and other persons to collect evidence, has
opportunities which a police officer has of extracting
confessions from a suspect, and if the expression police officer
be not narrowly understood, a statement recorded by him of
a person who is accused of an offence is inadmissible by
F virtue of Section 25 of the Indian Evidence Act. But the test
for determining whether an officer of customs is to be deemed
a police officer is whether he is invested with all the powers
of a police officer qua investigation of an offence, including
the power to submit a report under Section 173 of the Code of
G Criminal Procedure. It is not claimed that a Customs Officer
exercising power to make an enquiry may submit a report
under Section 173 of the Code of Criminal Procedure.
24.He is, it is true, invested with the powers of an officer in
charge of a police station for the purpose of releasing any
21
H AIR 1970 SC 940
TOFAN SINGH v. STATE OF TAMIL NADU 821
[INDIRA BANERJEE, J.]

person on bail or otherwise. The expression “or otherwise” A
does not confer upon him the power to lodge a report before a
Magistrate under Section 173 of the Code of Criminal
Procedure. Power to grant bail, power to collect evidence,
and power to search premises or conveyances without recourse
to a Magistrate, do not make him an officer in charge of a
B
police station.”
168. In Illias v. Collector of Customs, Madras22 a Constitution
Bench of five judges examined the earlier decisions of this Court,
compared the duties and functions of police officers and Customs Officers
and held that statements of the nature of a confession made before a
Customs Officer would not be inadmissible in evidence on the ground C
that Customs Officers were Police Officers within the meaning of Section
25 of the Evidence Act. The Constitution Bench held:
“...(1) The police is the instrument for the prevention and
detection of crime which can be said to be the main object of
having the police. The powers of customs officers are really D
not for such purpose and are meant for checking the
smuggling of goods and due realization of customs duties and
for determining the action to be taken in the interest of the
revenue country by way of confiscation of goods on which
no duty had been paid and by imposing penalties and fines. E
(2) The customs staff has merely to make a report in relation
to offences which are to be dealt with by a Magistrate. The
customs officer, therefore, is not primarily concerned with the
detection and punishment of crime but he is merely interested
in the detection and prevention of smuggling of goods and F
safeguarding the recovery of customs duties.
(3) The powers of search etc. conferred on the customs
officers are of a limited character and have a limited object
of safeguarding the revenues of the State and the statute itself
refers to police officers in contradiction to customs officers; G
(4) If a customs officer takes evidence under Section 171-A
and there is an admission of guilt, it will be too much to say
that that statement is a confession to a police officer as a
police officer never acts judicially and no proceeding before
22
AIR 1970 SC 1065 H
822 SUPREME COURT REPORTS [2020] 12 S.C.R.

A him is deemed to be a judicial proceeding for the purpose of
Sections 193 and 228 of the Indian Penal Code or for any
other purpose.”
169. As found in Illias (supra) the main function of the police is
prevention and detection of crime. The Police Officers have powers
B wide enough to extract confessions by intimidation or use of force or
veiled threats of implication in some other crime. On the other hand, the
powers of officers under the NDPS Act are not for the prevention and
detection of crimes generally. These officers are only concerned with
detection and prevention of trafficking of and/or illegal trade/business in
narcotic drugs and psychotropic substances. Powers of search, seizure
C etc. conferred on officers of the NCB or other officers under the NDPS
Act are of a limited character. The NDPS Act itself refers to police
officers in contra distinction to other officers under the NDPS Act.
170. In the State of Uttar Pradesh v. Durga Prasad23 this Court
considered the question of whether an enquiry under Section 8(1) of the
D Railway Property(Unlawful Possession) Act 1966, was an investigation
under Section 156 of the Cr. P C, and if so, whether statements recorded
in course of investigation were hit by Section 162 of Cr. P C and if
confessional in nature, inadmissible in evidence under Section 25 of the
Evidence Act. This Court held:
E “The right and duty of an Investigating Officer to file a police
report or a charge-sheet on the conclusion of investigation is
the hallmark of an investigation under the Code. Section
173(1)(a) of the Code provides that as soon as the
investigation is completed the officer-in-charge of the police
F station shall forward to a Magistrate empowered to take
cognizance of the offence on a police report, a report in the
form prescribed by the State Government. The officer
conducting an inquiry under Section 8(1) cannot initiate court
proceedings by filing a police report as is evident from the
two provisos to Section 8(2) of the Act..... On the conclusion
G of an enquiry under Section 8(1), therefore, if the officer of
the Force is of the opinion that there is sufficient evidence or
reasonable ground of suspicion against the accused, he must
file a complaint under Section 190(1)(a) of the Code in order

23
H (1975) 3 SCC 210
TOFAN SINGH v. STATE OF TAMIL NADU 823
[INDIRA BANERJEE, J.]

that the Magistrate concerned may take cognizance of the A
offence.
Thus an officer conducting an inquiry under Section 8(1)
of the Act does not possess all the attributes of an officer-in-
charge of a police station investigating a case under Chapter
XIV of the Code. He possesses but a part of those attributes B
limited to the purpose of holding the inquiry”.
171. In Balkishan A Devidayal vs State of Maharashtra24, this
Court considered the question of whether an Inspector of the Railway
Protection Force enquiring into an offence under Section 3 of the Railway
Property (Unlawful Possession) Act, 1966, could be said to be a “police C
officer” under Section 25, Evidence Act. This Court, after a review of
the case law, concluded as under:
“In the light of the above discussion, it is clear that an officer
of the RPF conducting an enquiry under Section 8(1) of the
1966 Act has not been invested with all the powers of an D
officer-in-charge of a police station making an investigation
under Chapter XIV of the Code. Particularly, he has no power
to initiate prosecution by filing a charge-sheet before the
Magistrate concerned under Section 173 of the Code, which
has been held to be the clinching attribute of an investigating
‘police officer’. Thus, judged by the test laid down in Badku E
Joti Savant 6 , which has been consistently adopted in the
subsequent decisions noticed above, Inspector Kakade of the
RPF could not be deemed to be a ‘police officer’ within the
meaning of Section 25 of the Evidence Act...”. (emphasis
supplied) F
172. In Raj Kumar Karwal v. Union of India and Ors.25 referred
to this Court for reconsideration, this Court considered the judgments of
this Court in Balbir Singh v. State of Haryana26; State of Punjab v.
Barkat Ram27; Raja Ram Jaiswal v. State of Bihar28, Badku Joti
Savant v. State of Mysore29, (Constitution Bench), Romesh Chandra G
24
(1980) 4 SCC 600
25
(1990) 2 SCC 409
26
(1987) 1 SCC 533
27
AIR 1962 SC 276
28
AIR 1964 SC 828
29
AIR 1966 SC 176 H
824 SUPREME COURT REPORTS [2020] 12 S.C.R.

A Mehta v. State of West Bengal30 (Constitution Bench); State of U.P. v.
Durga Prasad31; Balkishna A Devidayal v. State of Maharashtra32
and held that even if an officer is invested under any special statute with
powers analogous to those exercised by a police Officer in Charge of a
Police Station investigating a cognizable offence, he does not thereby
become a police officer under Section 25 of the Evidence Act unless he
B
has the power to lodge a report under Section 173 of the Cr.P.C. This
Court held:
“22. ...That is why this Court has since the decision in Badku
Joti Savant [(1966) 3 SCR 698 : AIR 1966 SC 1746 : 1966
Cri LJ 1353] accepted the ratio that unless an officer is
C invested under any special law with the powers of investigation
under the Code, including the power to submit a report under
Section 173, he cannot be described to be a ‘police officer’
under Section 25, Evidence Act. Counsel for the appellants,
however argued that since the Act does not prescribe the
D procedure for investigation, the officers invested with power
under Section 53 of the Act must necessarily resort to the
procedure under Chapter XII of the Code which would require
them to culminate the investigation by submitting a report
under Section 173 of the Code. Attractive though the
submission appears at first blush, it cannot stand close
E scrutiny. In the first place as pointed out earlier there is
nothing in the provisions of the Act to show that the legislature
desired to vest in the officers appointed under Section 53 of
the Act, all the powers of Chapter XII, including the power to
submit a report under Section 173 of the Code. But the issue
F is placed beyond the pale of doubt by sub-section (1) of
Section 36-A of the Act which begins with a non-obstante
clause — notwithstanding anything contained in the Code —
and proceeds to say in clause (d) as under:
“36-A. (d) a Special Court may, upon a perusal of police
G report of the facts constituting an offence under this Act
or upon a complaint made by an officer of the Central
Government or a State Government authorised in this
30
AIR 1970 SC 940
31
(1975) 3 SCC 210
32
H (1980) 4 SCC 600
TOFAN SINGH v. STATE OF TAMIL NADU 825
[INDIRA BANERJEE, J.]

behalf, take cognizance of that offence without the accused A
being committed to it for trial.”
This clause makes it clear that if the investigation is conducted
by the police, it would conclude in a police report but if the
investigation is made by an officer of any other department
including the DRI, the Special Court would take cognizance B
of the offence upon a formal complaint made by such
authorised officer of the concerned government. Needless to
say that such a complaint would have to be under Section
190 of the Code. This clause, in our view, clinches the matter.
We must, therefore, negative the contention that an officer
appointed under Section 53 of the Act, other than a police C
officer, is entitled to exercise ‘all’ the powers under Chapter
XII of the Code, including the power to submit a report or
charge-sheet under Section 173 of the Code. That being so,
the case does not satisfy the ratio of Badku Joti Savant [(1966)
3 SCR 698 : AIR 1966 SC 1746 : 1966 Cri LJ 1353] and D
subsequent decisions referred to earlier.
173. In Raj Kumar Karwal (supra), this Court further held:
“At least three Constitution Benches consisting of five Judges
have clearly and unequivocally held that, the test of whether
an officer other than a police officer properly so called, of E
some other departments, investigation of an offence under a
Special Act such as the Customs Act, was to be deemed to be
a police officer was whether he was invested with all the powers
of a police officer qua investigation, including the power to
submit a report under Section 173.” F
174. In Kanhaiyalal v. Union of India33 this Court followed the
earlier judgment in RaJ Kumar Karwal v. Union of India and Ors.34
and held that officers of the Department of Revenue Intelligence invested
under Section 53 with the powers of an Officer in Charge of a Police
Station for the purpose of investigation of an offence under the NDPS G
Act were not police officers within the meaning of Section 25 of the
Evidence Act and a statement made under Section 67 of the NDPS Act
was not the same as a statement made to the police under Section 161
of the Cr.P.C. The judgments do not require reconsideration.
33
(2008) 4 SCC 668
34
(1990) 2 SCC 409 H
826 SUPREME COURT REPORTS [2020] 12 S.C.R.

A 175. It is not in dispute that officers under the NDPS Act are
drawn from different Government Departments and are not necessarily
police officers as such. The NDPS Act also specifically differentiates
police officers from other officers entrusted with powers under the NDPS
Act, as will be evident, inter alia, from Sections 41(2), 42(1), 52(3)(a),
53(1) and (2), 55, 68T.
B
176. As observed above, Section 53 of the NDPS Act confers
power on the Central Government to invest any officer of the Department
of Central Excise, Narcotics, Customs, Revenue, Intelligence or any
other Department of the Central Government, including para military or
armed forces or any such class of officers with the powers of an Officer
C in Charge of a Police Station for the investigation of offences under the
NDPS Act.
177. Similarly Section 53(2) empowers the State Government to
invest any officer of the Department of Drugs Control, Revenue or Excise
or any other Department, or any class of officers with the powers of an
D Officer in Charge of a Police Station for the investigation of offences
under the NDPS Act.
178. The proposition of law which emerges from the three
Constitution Bench judgments referred to above is that, for determining
whether an officer of any other department of the Government, such as
E a Central Excise Officer or Customs Officer, conducting an inquiry and/
or investigation of an offence, could be deemed to be a police officer,
the test is, whether such officer had been invested with all the powers of
a police officer qua investigation, including the power to submit a police
report under Section 173 of the Cr.P.C.
F 179. In Badku Jyoti Savant (supra), the Constitution Bench of
this Court clearly held in effect and substance that conferment of the
powers of an Officer in Charge of a Police Station, on a government
officer, for the purpose of investigation of an offence under a special
act, would not include the power to submit a report under Section 173 of
G the Cr.P.C, which a police officer has. This view was reiterated by the
Constitution Bench in Romesh Chandra Mehta (supra).
180. The powers of investigation conferred on Central Excise
Officers under Section 21(2) of the Central Excise Act and on officers
of the Railway Protection Force under Section 8(2) of the Railway
Property (Unlawful Possession) Act are almost identical to the powers
H
TOFAN SINGH v. STATE OF TAMIL NADU 827
[INDIRA BANERJEE, J.]

of investigation, with which an officer may be invested under Section 53 A
of the NDPS Act. In Badku Joti Savant (supra) the Constitution Bench
interpreted Section 21(2) of the Central Excise Act (then titled the Central
Excise and Salt Act) and held that the power did not include the power
to submit a report under Section 173 of the Cr.P.C. The Central Excise
Officers were, accordingly, held not to be Police Officers within the
B
meaning of Section 25 of the Evidence Act. The judgment of this Court
in Raja Ram Jaiswal (supra) was distinguished by the Constitution
Bench of this Court in Badku Joti Savant (supra). In Raj Kumar
Karwal (supra) the Bench rightly followed the larger five Judge Bench
decision, following the established norms of judicial discipline.
181. In Abdul Rashid v. State of Bihar35, this Court considered C
the admissibility of a confessional statement to a Superintendent of Excise
under Bihar and Orissa Excise Act, 1915. The issue was covered by
Raja Ram Jaiswal (supra), which has been distinguished by the
Constitution Bench in Badku Joti Savant (supra) since the officer was
deemed to be an Officer in Charge of a police station. Officers under D
the NDPS Act are not deemed to be Officers in Charge of a police
station. They exercise the power of an Officer in Charge of a police
Station for the limited purpose of investigation of an offence under the
NDPS Act with no power to file a Police Report.
182. In Pon Adithan v. Deputy Director, Narcotics Control E
Bureau, Madras36, this Court held that it could not be laid down as a
proposition of law that in the absence of independent evidence and
supporting documentary evidence, the oral evidence of a witness
conducting the search could not be recorded as sufficient for establishing
compliance with the requirement of Section 50(1) of the NDPS Act.
This Court also held that confessional statement made by the Appellant F
while in custody of Intelligence Officer, Narcotics Intelligence Bureau
was admissible in evidence in the absence of any complaint or threat or
pressure made by the accused when produced before the Magistrate.
183. The NDPS Act may loosely have been described as a penal
statute in some judgments of this Court in the sense that the NDPS Act G
contains stringent penal provisions including punishment of imprisonment
of twenty years and even death sentence in certain exceptional cases of
offence repeated after earlier conviction.
35
(2001) 9 SCC 578
36
(1999) 6 SCC 1 H
828 SUPREME COURT REPORTS [2020] 12 S.C.R.

A 184. To quote V. Sudhish Pai form, his book ‘Constitutional
Supremacy – A Revisit’
“Judgments and observations in judgments are not to be read
as Euclid’s theorems or as provisions of statute. Judicial
utterances/pronouncements are in the setting of the facts of
B a particular case. To interpret words and provisions of a
statute it may become necessary for judges to embark upon
lengthy discussions, but such discussion is meant to explain
not define. Judges interpret statutes, their words are not to be
interpreted as statutes. Thus, precedents are not to be read
as statutes.”
C
185. Constitution benches are constituted to resolve a constitutional
issue, harmonize conflicting views and settle the law. A Constitution bench
decision might only be reconsidered by a Constitution Bench of a larger
strength and that too in exceptional and compelling circumstances. An
interpretation which has held the field for over fifty years should not be
D upset for the asking. A Change in the legal position which has held the
field through judicial precedents over a length of time can only be
considered when such change is absolutely imperative.
186. The dominant object of the NDPS Act is to control and
regulate operations relating to narcotic drugs and psychotropic substances,
E to provide for forfeiture of property derived from or used in illicit traffic
in narcotic drugs and psychotropic substances, to implement the provisions
of the International Convention on Drugs and Psychotropic Substances,
and for matters connected therewith.
187. On the other hand, the dominant object of a penal statute is
F to provide for punishment of a range of intentional acts and omissions of
different types, enumerated in the statute. The Indian Penal Code is a
typical penal statute. Statutes like the Prevention of Corruption Act
1988 and the Protection of Children from Sexual Offences Act 2012,
which mainly provide for punishment of specific offences are also penal
G statutes.
188. In any case, it is well settled that penal statutes enacted to
deal with a social evil should liberally be construed to give effect to the
object for which the statute has been enacted as held by Nariman, J. in

H
TOFAN SINGH v. STATE OF TAMIL NADU 829
[INDIRA BANERJEE, J.]

Rajindere Singh v. State of Punjab37 In M. Narayanan Nambiar v. A
State of Kerala38, a Constitution Bench of this Court construed Section
5(1) (d) of the Prevention of Corruption Act, 1947. In construing the
said Act, a penal statute, Subba Rao, J. stated:-
9. “The Preamble indicates that the Act was passed as it was
expedient to make more effective provisions for the prevention B
of bribery and corruption. The long title as well as the
Preamble indicate that the Act was passed to put down the
said social evil i.e. bribery and corruption by public servant.
Bribery is a form of corruption. The fact that in addition to
the word ‘bribery’ the word ‘corruption’ is used shows that
the legislation was intended to combat also other evil in C
addition to bribery. The existing law i.e. the Penal Code was
found insufficient to eradicate or even to control the growing
evil of bribery and corruption corroding the public service
of our country. The provisions broadly include the existing
offences under Sections 161 and 165 of the Penal Code, 1860 D
committed by public servants and enact a new rule of
presumptive evidence against the accused. The Act also creates
a new offence of criminal misconduct by public servants
though to some extent it overlaps on the pre-existing offences
and enacts a rebuttable presumption contrary to the well-
known principles of criminal jurisprudence. It also aims to E
protect honest public servants from harassment by prescribing
that the investigation against them could be made only by
police officials of particular status and by making the sanction
of the Government or other appropriate officer a pre-
condition for their prosecution. As it is a socially useful F
measure conceived in public interest, it should be liberally
construed so as to bring about the desired object i.e. to prevent
corruption among public servants and to prevent harassment
of the honest among them.
10. A decision of the Judicial Committee in Dyke v. Elliott, G
The Gauntlet [(1872) LR 4 PC 184] , cited by the learned
counsel as an aid for construction neatly states the principle
and therefore may be extracted: Lord Justice James speaking
for the Board observes at LR p. 191:
37
(2015) 6 SCC 477
38
AIR 1963 SC 1116 H
830 SUPREME COURT REPORTS [2020] 12 S.C.R.

A ‘… No doubt all penal statutes are to be construed strictly,
that is to say, the Court must see that the thing charged as an
offence is within the plain meaning of the words used, and
must not strain the words on any notion that there has been a
slip, that there has been a casus omissus, that the thing is so
clearly within the mischief that it must have been intended to
B
be included if thought of. On the other hand, the person
charged has a right to say that the thing charged, although
within the words, is not within the spirit of the enactment. But
where the thing is brought within the words and within the
spirit, there a penal enactment is to be construed, like any
C other instrument, according to the fair commonsense meaning
of the language used, and the Court is not to find or make
any doubt or ambiguity in the language of a penal statute,
where such doubt or ambiguity would clearly not be found or
made in the same language in any other instrument.’
D In our view this passage, if we may say so, restates the rule of
construction of a penal provision from a correct perspective.”
189. In Standard Chartered Bank v. Directorate of
Enforcement39 the majority Judges held:-
“23. The counsel for the appellant contended that the penal
E provision in the statute is to be strictly construed. Reference
was made to Tolaram Relumal v. State of Bombay [AIR 1954
SC 496 : 1954 Cri LJ 1333 : (1955) 1 SCR 158] , SCR at p.
164 and Girdhari Lal Gupta v. D.H. Mehta [(1971) 3 SCC
189 : 1971 SCC (Cri) 279] . It is true that all penal statutes
F are to be strictly construed in the sense that the court must
see that the thing charged as an offence is within the plain
meaning of the words used and must not strain the words on
any notion that there has been a slip that the thing is so clearly
within the mischief that it must have been intended to be
included and would have been included if thought of. All penal
G provisions like all other statutes are to be fairly construed
according to the legislative intent as expressed in the
enactment. Here, the legislative intent to prosecute corporate
bodies for the offence committed by them is clear and explicit

39
H (2005) 4 SCC 530
TOFAN SINGH v. STATE OF TAMIL NADU 831
[INDIRA BANERJEE, J.]

and the statute never intended to exonerate them from being A
prosecuted. It is sheer violence to common sense that the
legislature intended to punish the corporate bodies for minor
and silly offences and extended immunity of prosecution to
major and grave economic crimes.
24. The distinction between a strict construction and a more B
free one has disappeared in modern times and now mostly the
question is ‘what is true construction of the statute?’ A passage
in Craies on Statute Law, 7th Edn. reads to the following
effect:
‘The distinction between a strict and a liberal construction C
has almost disappeared with regard to all classes of
statutes, so that all statutes, whether penal or not, are now
construed by substantially the same rules. “All modern Acts
are framed with regard to equitable as well as legal
principles.” “A hundred years ago”, said the court in Lyons
case [R. v. Lyons, 1858 Bell CC 38 : 169 ER 1158] , “statutes D
were required to be perfectly precise and resort was not
had to a reasonable construction of the Act, and thereby
criminals were often allowed to escape. This is not the
present mode of construing Acts of Parliament. They are
construed now with reference to the true meaning and real E
intention of the legislature.”
190. In Balram Kumawat v. Union of India40, a three-Judge
Bench of this Court held:-
“23. Furthermore, even in relation to a penal statute any
narrow and pedantic, literal and lexical construction may not F
always be given effect to. The law would have to be interpreted
having regard to the subject-matter of the offence and the
object of the law it seeks to achieve. The purpose of the law
is not to allow the offender to sneak out of the meshes of law.
Criminal jurisprudence does not say so.” G
191. In Reema Aggrawal v. Anupam41, this Court construing
the provisions of Dowry Prohibition of Act followed Lord Denning’s
judgment in Seaford Court Estates Ltd. V Asher42 and held :-
40
(2003) 7 SCC 628
41
(2004) 3 SCC 199 H
42
(1949) 2 ALL ER 155(CA)
832 SUPREME COURT REPORTS [2020] 12 S.C.R.

A “…He must set to work on the constructive task of finding
the intention of Parliament, and he must do this not only from
the language of the statute, but also from a consideration of
the social conditions which gave rise to it and of the mischief
which it was passed to remedy, and then he must supplement
the written word so as to give “force and life” to the intention
B
of the legislature.”
192. In Rajinder Singh v. State of Punjab (supra), Nariman J.,
reiterated the proposition laid down in the judgments referred to above
and held “ a fair and pragmatic construction keeping in mind the great
social evil that has led to the enactment of Section 304-B would make it
C clear that the expression “soon” is a relative expression. Time-lags may
differ from case to case. The expression “soon before” is a relative
term to determine what period which can come within the terms “soon
before” is left to be determined by the Courts depending upon the facts
and circumstances of the case.
D 193. The Central Excise Act may be a revenue law aimed at the
imposition, collection and/or realisation of Excise duty on notified goods.
The purpose of the NDPS Act is obviously different. It cannot, however,
be said that the NDPS Act, being a penal statute, in contradistinction to
the Customs Act and the Central Excise Act, whose dominant object is
E to protect the revenue of the State, judicial interpretation of powers of
investigation under those Acts, which are almost identical to the powers
of investigation of an officer under the NDPS Act, would not be relevant
to investigation under the NDPS Act.
194. The Central Excise Act has stringent penal provisions for
F effective implementation of the said Act. Offences punishable under
clauses (b) and (bbbb) of sub-section (1) of Section 9 for serious duty
evasion and contravention of any of the provisions of the Central Excise
Act or Rules made thereunder in relation to credit of any duty allowed to
be utilised towards payment of excise duty on final products, are also
cognizable and non bailable. Many of the offences under the Central
G Excise Act, 1944 are punishable with imprisonment, which may extend
to seven years.
195. Some of the provisions of the Central Excise Act 1944, are
set out hereinbelow:

H
TOFAN SINGH v. STATE OF TAMIL NADU 833
[INDIRA BANERJEE, J.]

“9. Offences and Penalties.—(1) Whoever commits any of the A
following offences, namely:— (a) contravenes any of the
provisions of Section 8 or of a rule made under clause (iii) or
clause (xxvii) of sub-section (2) of Section 37;
(b) evades the payment of any duty payable under this Act;
(bb) removes any excisable goods in contravention of any of B
the provisions of this Act or any rules made thereunder or in
any way concerns himself with such removal;
(bbb) acquires possession of, or in any way concerns himself
in transporting, depositing, keeping, concealing, selling or
purchasing, or in any other manner deals with any excisable C
goods which he knows or has reason to believe are liable to
confiscation under this Act or any rule made thereunder;
(bbbb) contravenes any of the provisions of this Act or the
rules made thereunder in relation to credit of any duty allowed
to be utilised towards payment of excise duty on final products; D
(c) fails to supply any information which he is required by
rules made under this Act to supply, or (unless with a
reasonable belief, the burden of proving which shall be upon
him, that the information supplied by him is true) supplies
false information; E
(d) attempts to commit, or abets the commission of, any of the
offences mentioned in clauses (a) and (b) of this section;
shall be punishable,—
(i) in the case of an offence relating to any excisable goods, F
the duty leviable thereon under this Act exceeds fifty lakh of
rupees, with imprisonment for a term which may extend to
seven years and with fine:
Provided that in the absence of special and adequate reasons
to the contrary to be recorded in the judgment of the Court G
such imprisonment shall not be for a term of less than six
months;
(ii) in any other case, with imprisonment for a term which
may extend to three years or with fine or with both.]
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834 SUPREME COURT REPORTS [2020] 12 S.C.R.

A (2) If any person convicted of an offence under this section
is again convicted of an offence under this section, then, he
shall be punishable for the second and for every subsequent
offence with imprisonment for a term which may extend to
seven years and with fine:
B Provided that in the absence of special and adequate reasons
to the contrary to be recorded in the judgment of the Court such
imprisonment shall not be for a term of less than six months.
9-C. Presumption of culpable mental state.— (1) In any
prosecution for an offence under this Act which requires a
C culpable mental state on the part of the accused, the Court
shall presume the existence of such mental state but it shall
be a defence for the accused to prove the fact that he had no
such mental state with respect to the act charged as an offence
in that prosecution.
D Explanation.— In this section, “culpable mental state”
includes intention, motive, knowledge of a fact, and belief in,
or reason to believe, a fact.
(2) For the purposes of this section, a fact is said to be proved
only when the Court believes it to exist beyond reasonable
E doubt and not merely when its existence is established by a
preponderance of probability.
9-D. Relevancy of statements under certain circumstances.—
(1) A statement made and signed by a person before any
Central Excise Officer of a gazetted rank during the course
F of any inquiry or proceeding under this Act shall be relevant,
for the purpose of proving, in any prosecution for an offence
under this Act, the truth of the facts which it contains,—
(a) when the person who made the statement is dead or cannot
be found, or is incapable of giving evidence, or is kept out of
the way by the adverse party, or whose presence cannot be
G
obtained without an amount of delay or expense which, under
the circumstances of the case, the Court considers
unreasonable; or
(b) when the person who made the statement is examined as a
witness in the case before the Court and the Court is of opinion
H
TOFAN SINGH v. STATE OF TAMIL NADU 835
[INDIRA BANERJEE, J.]

that, having regard to the circumstances of the case, the A
statement should be admitted in evidence in the interests of
justice.
(2) The provisions of sub-section (1) shall, so far as may be,
apply in relation to any proceeding under this Act, other than
a proceeding before a Court, as they apply in relation to a B
proceeding before a Court.
xxx xxx xxx
12-F. Power of search and seizure.— (1) Where the
Joint Principal Commissioner of Central Excise or
Commissioner of Central Excise or Additional Principal C
Commissioner of Central Excise or Commissioner of Central
Excise or such other Central Excise Officer as may be notified
by the Board has reasons to believe that any goods liable to
confiscation or any documents or books or things, which in
his opinion shall be useful for or relevant to any proceedings D
under this Act, are secreted in any place, he may authorise in
writing any Central Excise Officer to search and seize or may
himself search and seize such documents or books or things.
(2) The provisions of the Code of Criminal Procedure, 1973
(2 of 1974), relating to search and seizure shall, so far as E
may be, apply to search and seizure under this section subject
to the modification that sub-section (5) of Section 165 of the
said Code shall have effect as if for the word “Magistrate”,
wherever it occurs, the words “Principal Commissioner of
Central Excise or Commissioner of Central Excise]” were
substituted. F
13. Power to arrest.— Any Central Excise Officer not below
the rank of Inspector of Central Excise may, with the prior
approval of the Principal Commissioner of Central Excise or
Commissioner of Central Excise], arrest any person whom he
has reason to believe to be liable to punishment under this G
Act or the rules made thereunder.
(2) Any person accused or reasonably suspected of committing
an offence under this Act or any rules made thereunder, who

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836 SUPREME COURT REPORTS [2020] 12 S.C.R.

A on demand of any officer duly empowered by the Central
Government in this behalf refuses to give his name and
residence, or who gives a name or residence which such officer
has reason to believe to be false, may be arrested by such
officer in order that his name and residence may be
ascertained.
B
14. Power to summon persons to give evidence and produce
documents in inquiries under this Act.— (1) Any Central Excise
Officer duly empowered by the Central Government in this
behalf shall have power to summon any person whose
attendance he considers necessary either to give evidence or
C to produce a document or any other thing in any inquiry which
such officer is making for any of the purposes of this Act. A
summons to produce documents or other things may be for
the production of certain specified documents or things or
for the production of all documents or things of a certain
D description in the possession or under the control of the person
summoned.
(2) All persons so summoned shall be bound to attend, either
in person or by an authorised agent, as such officer may
direct; and all persons so summoned shall be bound to state
E the truth upon any subject respecting which they are examined
or make statements and to produce such documents and other
things as may be required:
Provided that the exemptions under Sections 132 and 133 of
the Code of Civil Procedure, 1908 (5 of 1908) shall be
F applicable to requisitions of attendance under this section.
(3) Every such inquiry as aforesaid shall be deemed to be a
“judicial proceeding” within the meaning of Section 193 and
Section 228 of the Indian Penal Code, 1860 (45 of 1860).
Sections 36(A) and 36(B)(1) of the Central Excise Act provide
G as follows:
36-A. Presumption as to documents in certain cases.—Where
any document is produced by any person or has been seized
from the custody or control of any person, in either case,
under this Act or under any other law and such document is
H
TOFAN SINGH v. STATE OF TAMIL NADU 837
[INDIRA BANERJEE, J.]

tendered by the prosecution in evidence against him or against A
him and any other person who is tried jointly with him, the
Court shall,—
(a) unless the contrary is proved by such person, presume—
(i) the truth of the contents of such document;
B
(ii) that the signature and every other part of such document
which purports to be in the handwriting of any particular
person or which the Court may reasonably assume to have
been signed by, or to be in the handwriting of, any particular
person, is in that person’s handwriting, and in the case of a
document executed or attested, that it was executed or attested C
by the person by whom it purports to have been so executed
or attested;
(b) admit the document in evidence, notwithstanding that it is
not duly stamped, if such document is otherwise admissible in
evidence. D
36-B. Admissibility of microfilms, facsimile copies of
documents and computer printouts as documents and as
evidence.—(1) Notwithstanding anything contained in any
other law for the time being in force,—
E
(a) a microfilm of a document or the reproduction of the image
or images embodied in such microfilm (whether enlarged or
not); or
(b) a facsimile copy of a document; or
(c) a statement contained in a document and included in a F
printed material produced by a computer (hereinafter referred
to as a “computer printout”), if the conditions mentioned in
sub-section (2) and the other provisions contained in this
section are satisfied in relation to the statement and the
computer in question,
G
shall be deemed to be also a document for the purposes of
this Act and the rules made thereunder and shall be admissible
in any proceedings thereunder, without further proof or
production of the original, as evidence of any contents of the

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838 SUPREME COURT REPORTS [2020] 12 S.C.R.

A original or of any fact stated therein of which direct evidence
would be admissible.”
196. The Customs Act, 1962 has been enacted to consolidate and
amend the law relating to customs. The Customs Act regulates import
and export of goods to and from India, apart from levy and collection of
B customs duty. One of the dominant objects of the Customs Act is to
prevent smuggling of goods. Chapter IV of the Customs Act enables
the Central Government to prohibit the import or export of goods of any
specified description for various reasons, including prevention of shortage,
the protection of human, animal or plant life or health, the protection of
trade marks, patent, copyright, prevention of deceptive practices,
C implementation of any treaty or convention etc. The examples are
illustrative and not exhaustive.
197. The said Act contains stringent penal provisions to enforce
compliance with the said Act. Offences under sub-Section 4 of Section
9 of the Customs Act, for example, any offence relating to prohibited
D goods or evasion or attempted evasion of duty exceeding a certain value,
or fraudulent availing of or attempt to avail drawback or exemption etc.
are cognizable offences.
198. Some of the offences under the Customs Act are punishable
with imprisonment which may extend to seven years apart from fine.
E Under Section 135(A) of the Customs Act, even a person who makes
preparation to export any goods in contravention of the provisions of the
Customs Act, is punishable with imprisonment for a term which may
extend to three years, or with fine or with both. The Customs Officers
are conferred with powers of search, seizure and arrest under the Customs
F Act. When any goods are seized under the Customs Act in the belief
that they are smuggled, the burden of proving that the goods were not
smuggled is on the person from whose possession, the goods were seized.
If the person from whom the goods are seized is not the owner, the
burden would fall on the person who claims to be the owner. Chapter
XIII of the Customs Act 1962 relates to searches, seizure and arrest
G under the said Act.
199. Some of the provisions of the Customs Act are set out
hereinbelow:
“100. Power to search suspected person entering or leaving
India, etc. —(1) If the proper officer has reason to believe
H
TOFAN SINGH v. STATE OF TAMIL NADU 839
[INDIRA BANERJEE, J.]

that any person to whom the section applies has secreted about A
his person, any goods liable to confiscation or any documents
relating thereto, he may search that person.
(2) This section applies to the following persons, namely—
(a) any person who has landed from or is about to board or
is on board any vessel within the Indian customs waters; B

(b) any person who has landed from or is about to board, or
is on board a foreign-going aircraft;
(c) any person who has got out of, or is about to get into, or
is in, a vehicle, which has arrived from, or is to proceed to C
any place outside India;
(d) any person not included in clauses (a), (b) or (c) who has
entered or is about to leave India;
(e) any person in a customs area.
D
101. Power to search suspected persons in certain other
cases.—(1) Without prejudice to the provisions of Section 100,
if an officer of customs, empowered in this behalf by general
or special order of the Commissioner of Customs, has reason
to believe that any person has secreted about his person any
goods of the description specified in sub-section (2) which E
are liable to confiscation, or documents relating thereto, he
may search that person.
102. Persons to be searched may require to be taken before
gazetted officer of customs or magistrate.—(1) When any
officer of customs is about to search any person under the F
provisions of Section 100 or Section 101, the officer of customs
shall, if such person so requires, take him without unnecessary
delay to the nearest gazetted officer of customs or magistrate.
(2) If such requisition is made, the officer of customs may
detain the person making it until he can bring him before the G
gazetted officer of customs or the magistrate.
(3) The gazetted officer of customs or the magistrate before
whom any such person is brought shall, if he sees no
reasonable ground for search, forthwith discharge the person
but otherwise shall direct that search be made. H
840 SUPREME COURT REPORTS [2020] 12 S.C.R.

A (4) Before making a search under the provisions of Section
100 or Section 101, the officer of customs shall call upon
two or more persons to attend and witness the search and
may issue an order in writing to them or any of them so to do;
and the search shall be made in the presence of such persons
and a list of all things seized in the course of such search
B
shall be prepared by such officer or other person and signed
by such witnesses.
(5) No female shall be searched by anyone excepting a female.
103. Power to screen or X-ray bodies of suspected persons
C for detecting secreted goods.—(1) Where the proper officer
has reason to believe that any person referred to in sub-section
(2) of Section 100 has any goods liable to confiscation
secreted inside his body, he may detain such person and
shall,—
D (a) with the prior approval of the Deputy Commissioner of
Customs or Assistant Commissioner of Customs, as soon as
practicable, screen or scan such person using such equipment
as may be available at the customs station, but without
prejudice to any of the rights available to such person under
any other law for the time being in force, including his consent
E for such screening or scanning, and forward a report of such
screening or scanning to the nearest magistrate if such goods
appear to be secreted inside his body; or
(b) produce him without unnecessary delay before the nearest
magistrate.
F
104. Power to arrest.—(1) If an officer of customs empowered
in this behalf by general or special order of the Commissioner
of Customs has reason to believe that any person * * *has
committed an offence punishable under Section 132 or
Section 133 or Section 135 or Section 135-A or Section 136,
G he may arrest such person and shall, as soon as may be, inform
him of the grounds for such arrest.]
(2) Every person arrested under sub-section (1) shall, without
unnecessary delay, be taken to a magistrate.
105. Power to search premises.—(1) If the Assistant
H Commissioner of Customs, or in any area adjoining the land
TOFAN SINGH v. STATE OF TAMIL NADU 841
[INDIRA BANERJEE, J.]

frontier or the coast of India an officer of customs specially A
empowered by name in this behalf by the Board, has reason
to believe that any goods liable to confiscation, or any
documents or things which in his opinion will be useful for or
relevant to any proceeding under this Act, are secreted in any
place, he may authorise any officer of customs to search or
B
may himself search for such goods, documents or things.
(2) The provisions of the Code of Criminal Procedure, 1898
(5 of 1898), relating to searches shall, so far as may be, apply
to searches under this section subject to the modification that
sub-section (5) of Section 165 of the said Code shall have
effect as if for the word “Magistrate”, wherever it occurs, C
the words “Commissioner of Customs” were substituted.
106. Power to stop and search conveyances.—(1) Where the
proper officer has reason to believe that any aircraft, vehicle
or animal in India or any vessel in India or within the Indian
customs waters has been, is being, or is about to be, used in D
the smuggling of any goods or in the carriage of any goods
which have been smuggled, he may at any time stop any such
vehicle, animal or vessel or, in the case of an aircraft, compel
it to land, and—
(a) rummage and search any part of the aircraft, vehicle or E
vessel;
(b) examine and search any goods in the aircraft, vehicle or
vessel or on the animal;
(c) break open the lock of any door or package for exercising F
the powers conferred by clauses (a) and (b), if the keys are
withheld.
107. Power to examine persons.—Any officer of customs
empowered in this behalf by general or special order of the
Commissioner of Customs may, during the course of any
G
enquiry in connection with the smuggling of any goods,—
(a) require any person to produce or deliver any document
or thing relevant to the enquiry;
(b) examine any person acquainted with the facts and
circumstances of the case. H
842 SUPREME COURT REPORTS [2020] 12 S.C.R.

A 108. Power to summon persons to give evidence and produce
documents.—(1) Any gazetted officer of customs * * *, shall
have power to summon any person whose attendance he
considers necessary either to give evidence or to produce a
document or any other thing in any inquiry which such officer
is making under this Act.
B
(2) A summons to produce documents or other things may be
for the production of certain specified documents or things
or for the production of all documents or things of a certain
description in the possession or under the control of the person
summoned.
C
(3) All persons so summoned shall be bound to attend either
in person or by an authorised agent, as such officer may
direct; and all persons so summoned shall be bound to state
the truth upon any subject respecting which they are examined
or make statements and produce such documents and other
D things as may be required:
Provided that the exemption under Section 132 of the Code
of Civil Procedure, 1908 (5 of 1908), shall be applicable to
any requisition for attendance under this section.

E (4) Every such inquiry as aforesaid shall be deemed to be a
judicial proceeding within the meaning of Section 193 and
Section 228 of the Indian Penal Code (45 of 1860).”
xxx xxx xxx
123. Burden of proof in certain cases:(1) Where any goods
F to which this section applies are seized under this Act in the
reasonable belief that they are smuggled goods, the burden
of proving that they are not smuggled goods shall be—
(a) in a case where such seizure is made from the possession
of any person,—
G (i) on the person from whose possession the goods were seized;
and
(ii) if any person, other than the person from whose possession
the goods were seized, claims to be the owner thereof, also,
on such other person;
H
TOFAN SINGH v. STATE OF TAMIL NADU 843
[INDIRA BANERJEE, J.]

(b) in any other case, on the person, if any who claims to be A
the owner of the goods so seized.
(2) This section shall apply to gold and manufactures thereof,
watches and any other class of goods which the Central
Government may by notification in the Official Gazette
specify.” B
xxx xxx xxx
“138. Offences to be tried summarily —Notwithstanding
anything contained in the Code of Criminal Procedure, 1898
(5 of 1898) an offence under this Chapter other than an
offence punishable under clause (i) of sub-section (1) of C
Section 135 or under sub-section (2) of that section may be
tried summarily by a Magistrate.
138-A. Presumption of culpable mental state.—(1) In any
prosecution for an offence under this Act which requires a
culpable mental state on the part of the accused, the court D
shall presume the existence of such mental state but it shall
be a defence for the accused to prove the fact that he had no
such mental state with respect to the act charged as an offence
in that prosecution.
Explanation.—In this section, “culpable mental state” includes E
intention, motive, knowledge of a fact and belief in, or reason
to believe, a fact.
(2) For the purposes of this section, a fact is said to be proved
only when the court believes it to exist beyond reasonable
doubt and not merely when its existence is established by a F
preponderance of probability.
138-B. Relevancy of statements under certain
circumstances.—(1) A statement made and signed by a person
before any gazetted officer of customs during the course of
any inquiry or proceeding under this Act shall be relevant, G
for the purpose of proving, in any prosecution for an offence
under this Act, the truth of the facts which it contains,—
(a) when the person who made the statement is dead or cannot
be found, or is incapable of giving evidence, or is kept out of
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844 SUPREME COURT REPORTS [2020] 12 S.C.R.

A the way by the adverse party, or whose presence cannot be
obtained without an amount of delay or expense which, under
the circumstances of the case, the court considers
unreasonable; or
(b) when the person who made the statement is examined as a
B witness in the case before the court and the court is of opinion
that, having regard to the circumstances of the case, the
statement should be admitted in evidence in the interests of
justice.
(2) The provisions of sub-section (1) shall, so far as may be, apply
C in relation to any proceeding under this Act, other than a proceeding
before a court, as they apply in relation to a proceeding before a
court.]
138-C. Admissibility of micro films, facsimile copies of
documents and computer print outs as documents and as
D evidence.—(1) Notwithstanding anything contained in any
other law for the time being in force,—
(a) a micro film of a document or the reproduction of the
image or images embodied in such micro film (whether
enlarged or not); or
E (b) a facsimile copy of a document; or
(c) a statement contained in a document and included in a
printed material produced by a computer (hereinafter referred
to as a “computer print out”), if the conditions mentioned in
sub-section (2) and the other provisions contained in this
F section are satisfied in relation to the statement and the
computer in question,
shall be deemed to be also a document for the purposes of
this Act and the rules made thereunder and shall be admissible
in any proceedings thereunder, without further proof of
G production of the original, as evidence of any contents of the
original or of any fact stated therein of which direct evidence
would be admissible.
(2) The conditions referred to in sub-section (1) in respect of
a computer print out shall be the following, namely:—
H
TOFAN SINGH v. STATE OF TAMIL NADU 845
[INDIRA BANERJEE, J.]

(a) the computer print out containing the statement was A
produced by the computer during the period over which the
computer was used regularly to store or process information
for the purposes of any activities regularly carried on over
that period by the person having lawful control over the use
of the computer;
B
(b) during the said period, there was regularly supplied to
the computer in the ordinary course of the said activities,
information of the kind contained in the statement or of the
kind from which the information so contained is derived;
(c) throughout the material part of the said period, the C
computer was operating properly or, if not, then any respect
in which it was not operating properly or was out of operation
during that part of that period was not such as to affect the
production of the document or the accuracy of the contents;
and
D
(d) the information contained in the statement reproduces or
is derived from information supplied to the computer in the
ordinary course of the said activities.
(3) Where over any period, the function of storing or
processing information for the purposes of any activities E
regularly carried on over that period as mentioned in clause
(a) of sub-section (2) was regularly performed by computers,
whether—
(a) by a combination of computers operating over that period;
or F
(b) by different computers operating in succession over that
period; or
(c) by different combinations of computers operating in
succession over that period; or
(d) in any other manner involving the successive operation G
over that period, in whatever order, of one or more computers
and one or more combinations of computers,
all the computers used for that purpose during that period
shall be treated for the purposes of this section as constituting
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846 SUPREME COURT REPORTS [2020] 12 S.C.R.

A a single computer; and references in this section to a computer
shall be construed accordingly.
(4) In any proceedings under this Act and the rules made
thereunder where it is desired to give a statement in evidence
by virtue of this section, a certificate doing any of the
B following things, that is to say,—
(a) identifying the document containing the statement and
describing the manner in which it was produced;
(b) giving such particulars of any device involved in the
production of that document as may be appropriate for the
C purpose of showing that the document was produced by a
computer;
(c) dealing with any of the matters to which the conditions
mentioned in sub-section (2) relate,

D and purporting to be signed by a person occupying a
responsible official position in relation to the operation of
the relevant device or the management of the relevant activities
(whichever is appropriate) shall be evidence of any matter
stated in the certificate; and for the purposes of this sub-
section it shall be sufficient for a matter to be stated to the
E best of the knowledge and belief of the person stating it.
(5) For the purposes of this section,—
(a) information shall be taken to be supplied to a computer if
it is supplied thereto in any appropriate form and whether it
is so supplied directly or (with or without human intervention)
F
by means of any appropriate equipment;
(b) whether in the course of activities carried on by any
official, information is supplied with a view to its being stored
or processed for the purposes of those activities by a computer
operated otherwise than in the course of those activities, that
G information, if duly supplied to that computer, shall be taken
to be supplied to it in the course of those activities;
(c) a document shall be taken to have been produced by a
computer whether it was produced by it directly or (with or
without human intervention) by means of any appropriate
H equipment.
TOFAN SINGH v. STATE OF TAMIL NADU 847
[INDIRA BANERJEE, J.]

Explanation.—For the purposes of this section,— A
(a) “computer” means any device that receives, stores and
processes data, applying stipulated processes to the
information and supplying results of these processes; and
(b) any reference to information being derived from other
information shall be a reference to its being derived therefrom B
by calculation, comparison or any other process.]
139. Presumption as to documents in certain cases.—Where
any document—
(i) is produced by any person or has been seized from the C
custody or control of any person, in either case, under this
Act or under any other law, or
(ii) has been received from any place outside India in the
course of investigation of any offence alleged to have been
committed by any person under this Act, D
and such document is tendered by the prosecution in evidence
against him or against him and any other person who is tried
jointly with him, the court shall—
(a) presume, unless the contrary is proved, that the signature
and every other part of such document which purports to be E
in the handwriting of any particular person or which the court
may reasonably assume to have been signed by, or be in the
handwriting of, any particular person, is in that person’s
handwriting, and in the case of a document executed or
attested, that it was executed or attested by the person by
F
whom it purports to have been so executed or attested;
(b) admit the document in evidence, notwithstanding that it is
not duly stamped, if such document is otherwise admissible in
evidence;
(c) in a case falling under clause (i) also presume, unless the G
contrary is proved, the truth of the contents of such document.]
Explanation.—For the purposes of this section, ‘document’
includes inventories, photographs and lists certified by a
Magistrate under sub-section (1-C) of Section 110.”
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A 200. Sections 100 and 101 empower the proper officer of customs
to conduct personal search. Section 103 enables the proper officer to
screen or x-ray the bodies of persons if he has reason to believe that any
person referred to in Section 100(2) has any goods, liable to confiscation,
secreted inside his body. An empowered officer of customs has power
of arrest under Section 104, powers to search premises under Section
B
105, power to stop and search conveyances under Section 106.
201. Section 107 of the Customs Act enables any officer of
customs, duly empowered by general or special order of the Principal
Commissioner of Customs/Commissioner of Customs to require any
person to produce or deliver any document or thing relevant to the enquiry
C and to examine any person acquainted with the facts and circumstances
of the case, during the course of any enquiry in connection with the
smuggling of any goods.
202. Section 108 (1) empowers any gazetted officer of customs
to summon any person, whose attendance he considers necessary, either
D to give evidence or to produce a document or any other thing in any
inquiry which such officer is making under the Customs Act. Under
Section 108(3) all persons so summoned are bound to attend, either in
person or by an authorised agent, as may be directed. All persons so
summoned shall be bound to state the truth. Section 108(4) provides
E that every such inquiry as aforesaid shall be deemed to be a judicial
proceeding within the meaning of Sections 193 and 228 of the Indian
Penal Code. In Union of India v. Padam NarainAggarwal and Ors.43,
this Court held that statements recorded under Section 108 are distinct
and different from statements recorded by the police officer during the
course of investigation under the Code of Criminal Procedure.
F
203. It is well settled that statements recorded under Section 108
are admissible in evidence. Reference may be made to K. I. Pavunny
v. Assistant Collector (H.Q.) Central Excise Collectorate, Cochin44.
In N. J. Sukhawani v. Union of India 45, this Court held that the
statement made under Section 108 of the Customs Act is a material
G piece of evidence collected by customs officials. A statement made by
the co accused can be used against others.

43
(2008) 13 SCC 305
44
(1997) 3 SCC 721
45
H AIR 1996 SC 522
TOFAN SINGH v. STATE OF TAMIL NADU 849
[INDIRA BANERJEE, J.]

204. The Foreign Exchange Regulation Act, 1973 (FERA) was A
an Act to amend the law regulating dealings in foreign exchange and
securities, transactions indirectly affecting foreign exchange and the
import and export of currency, for the conservation of foreign exchange
resources of the country and proper utilization thereof in the interest of
the economic development of the country. The FERA was repealed by
B
the Foreign Exchange Management Act (FEMA). Some of the relevant
provisions of the FERA are set out hereinbelow:-
“34 Power to search suspected persons and to seize
documents.- (1) If any officer of Enforcement authorised in
this behalf by the Central Government, by general or special
order, has reason to believe that any person has secreted about C
his person or in anything under his possession, ownership or
control any documents which will be useful for, or relevant
to, any investigation or proceeding under this Act, he may
search that person or such thing and seize such documents.
(2) When any officer of Enforcement is about to search any D
person under the provisions of this section, the officer of
Enforcement shall, if such person so requires, take such person
without unnecessary delay to the nearest Gazetted Officer of
Enforcement superior in rank to him or a magistrate.
(3) If such requisition is made, the officer of Enforcement E
may detain the person making it until he can bring him before
the Gazetted Officer of Enforcement or the magistrate referred
to in sub-section (2).
4) The Gazetted Officer of Enforcement or the magistrate
before whom any such person is brought shall, if he sees no F
reasonable ground for search, forthwith discharge the person
but otherwise shall direct that search be made.
(5) Before making a search under the provisions of this
section, the officer of Enforcement shall call upon two or
more persons to attend and witness the search and may issue G
an order in writing to them or any of them so to do; and the
search shall be made in the presence of such persons and a
list of all documents seized in the course of such search shall
be prepared by such officer and signed by such witnesses.
(6) No female shall be searched by any one excepting a female.
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850 SUPREME COURT REPORTS [2020] 12 S.C.R.

A 35. Power to arrest.- (1) If any officer of Enforcement
authorised in this behalf by the Central Government, by
general or special orders has reason to believe that any
person in India or within the Indian customs waters has been
guilty of an offence punishable under this Act, he may arrest
such person and shall, as soon as may be, inform hi m of the
B
grounds for such arrest.
(2) Every person arrested under sub-section ( 1 ) shall without
unnecessary delay, be taken to a magistrate.
(3) Where any officer of Enforcement has arrested any person
C under sub-section (1), he shall, for the purpose of releasing
such person on bail or otherwise, have the same powers and
be subject to the same provisions as the officer-in-charge of
a police station has, and is subject to, under the Code of
Criminal Procedure, 1973 ( 2 of 1974 ).
D 36. Power to stop and search conveyances.- If any officer of
Enforcement authorised in this behalf by the Central
Government, by general or special order has reason to believe
that any document which will be useful for, or relevant to,
any investigation or proceeding under this Act is secreted in
any aircraft or vehicle or on any animal in India or in any
E vessel in India or within the Indian customs waters, he may at
any time stop any such vehicle or animal or vessel or, in the
case of an aircraft, compel it to stop or land, and-
(a) rummage and search any part of the aircraft, vehicle or
vessel;
F
(b) examine and search any goods in the aircraft, vehicle or
vessel or on the animal;
(c) seize any such document as is referred to above;
(d) break open the lock of any door or package for exercising
G the powers conferred by clauses (a), (b) and (c), if the keys
are withheld.
37. Power to search premises.- (1) If any officer of
Enforcement, not below the rank of an Assistant Director of
Enforcement, has reason to believe that any documents which,
H
TOFAN SINGH v. STATE OF TAMIL NADU 851
[INDIRA BANERJEE, J.]

in his opinion, will be useful for, or relevant to any A
investigation or proceeding under this Act, are secreted in
any place, he may authorise any officer of Enforcement to
search for and seize or may himself search for and seize such
documents.
(2) The provisions of the1 [Code of Criminal Procedure, 1973 B
( 2 of 1974 )] relating to searches, shall, so far as may be,
apply to searches under the section subject to the modification
that sub-section ( 5 ) of section 165 of the said Code shall
have effect as if for the word “Magistrate”, wherever it occurs,
the words “Director of Enforcement or other officer exercising
his powers” were substituted. C

38. Power to seize documents, etc.- Without prejudice to the
provisions of section 34 or section 36 or section 37, if any
officer of Enforcement authorised in this behalf by the Central
Government, by general or special order, has reason to believe
that any document or thing will be useful for, or relevant to, D
any investigation or proceeding under this Act or in respect
of which a contravention of any of the provisions of this Act
or of any rule, direction or order thereunder has taken place,
he may seize such document or thing.
39. Power to examine persons.- The Director of Enforcement E
or any other officer of Enforcement authorised in this behalf
by the Central Government, by general or special order may,
during the course of any investigation or proceeding under
this Act,-
(a) require any person to produce or deliver any document F
relevant to the investigation or proceeding;
(b) examine any person acquainted with the facts and
circumstances of the case.
40. Power to summon persons to give evidence and produce
G
documents.- (1) Any Gazetted Officer of Enforcement shall
have power to summon any person whose attendance he
considers necessary either to give evidence or to produce a
document during the course of any investigation or proceeding
under this Act.
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852 SUPREME COURT REPORTS [2020] 12 S.C.R.

A (2) A summon to produce documents may be for the production
of certain specified documents or for the production of all
documents of a certain description in the possession or under
the control of the person summoned.
(3) All persons so summoned shall be bound to attend either
B in person or by authorised agents, as such officer may direct;
and all persons so summoned shall be bound to state the truth
upon any subject respecting which they are examined or make
statements and produce such documents as may be required:
Provided that the exemption under section 132 of the Code
C of Civil Procedure, 1908 (5 of 1908) shall be applicable to
any requisition for attendance under this section.
(4) Every such investigation or proceeding as aforesaid shall
be deemed to be a judicial proceeding within the meaning of
sections 193 and 228 of the Indian Penal Code, 1860 (45 of
D 1860)
xxx xxx xxx
56. Offences and prosecutions.- (1) Without prejudice to
any award of penalty by the adjudicating officer under this
Act, if any person contravenes any of the provisions of this
E Act [other than section 13, clause (a) of sub-section (1) of1
[section 18, section 18A), clause (a) of sub-section (1) of
section 19, sub-section (2) of section 44 and sections 57 and
58], or of any rule, direction or order made thereunder he
shall, upon conviction by a court, be punishable,-
F (i) in the case of an offence the amount or value involved in
which exceeds one lakh of rupees, with imprisonment for a
term which shall not be less than six months, but which may
extend to seven years and with fine:
Provided that the court may, for any adequate and special
G reasons to be mentioned in the judgment, impose a sentence
of imprisonment for a term of less than six months;
ii) in any other case, with imprisonment for a term which may
extend to three years or with fine or with both.

H
TOFAN SINGH v. STATE OF TAMIL NADU 853
[INDIRA BANERJEE, J.]

(2) If any person convicted of an offence under this Act [not A
being an offence under section 13 or clause (a) or sub-section
(1) of1 [section 18 or section 18A) or clause (a) of sub-section
(1) of section 19 or sub-section (2) of section 44 or section
57 or section 58] is again convicted of an offence under this
Act [not being an offence under section 13 or clause (a) of
B
sub-section (1) of [section 18 or section 18A] or clause (a)
of subsection (1) of section 19 or sub-section (2) of section
44 or section 57 or section 58], he shall be punishable for
the second and for every subsequent offence with imprisonment
for a term which shall not be less than six months but which
may extend to seven years and with fine: C
Provided that the court may, for any adequate and special
reasons to be mentioned in the judgment, impose a sentence
of imprisonment for a term of less than six months.
(3) Where a person having been convicted of an offence under
this Act, [not being an offence under section 13 or clause (a) D
of sub-section (1) of1 [section 18 or section 18A] or clause
(a) of sub-section (1) of section 19 or sub-section (2) of section
44 or section 57 or section 58], is again convicted of offence
under this Act [not being an offence under section 13 or clause
(a) of sub-section (1) of1 [section 18 or section 18A] or clause E
(a) of sub-section (1) of section 19 or sub-section (2) of section
44 or section 57 or section 58], the court by which such
person is convicted may, in addition to any sentence which
may be imposed on him under this section, by order, direct
that that person shall not carry on such business as the court
may specify, being a business which is likely to facilitate the F
commission of such offence for such period not exceeding
three years, as may be specified by the court in the order.
(4) For the purposes of sub-sections (1) and (2), the following
shall not be considered as adequate and special reasons for
awarding a sentence of imprisonment for a term of less than G
six months, namely:-
(i) the fact that the accused has been convicted for the first
time of an offence under this Act;

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854 SUPREME COURT REPORTS [2020] 12 S.C.R.

A (ii) the fact that in any proceeding under this Act, other than
a prosecution, the accused has been ordered to pay a penalty
or the goods in relation to such proceedings have been
ordered to be confiscated or any other penal action has been
taken against him for the same offence;
B (iii) the fact that the accused was not the principal offender
and was acting merely as a carrier of goods or otherwise
was a secondary party in the commission of the offence;
(iv) the age of the accused.
(5) For the purposes of sub-sections (1) and (2), the fact that
C an offence under this Act has caused no substantial harm to
the general public or to any individual shall be an adequate
and special reason for awarding a sentence of imprisonment
for a term of less than six months.
(6) Nothing in the proviso to section 188 of the Code of
D Criminal Procedure, 1973 (2 of 1974) shall apply to any
offence punishable under this section.
xxx xxx xxx
59. Presumption of culpable mental state.- (1) In any
prosecution for any offence under this Act which requires a
E
culpable mental state on the part of the accused, the court
shall presume the existence of such mental state but it shall
be a defence for the accused to prove the fact that he had no
such mental state with respect to the act charged as an offence
in that prosecution.
F
Explanation. —In this section, “culpable mental state”
includes intention, motive, knowledge of a fact and belief in,
or reason to believe, a fact.
(2) For the purposes of this section, a fact is said to be proved
only when the court believes it to exist beyond reasonable
G doubt and not merely when its existence is established by a
preponderance of probability.
(3) The provisions of this section shall, so far as may be,
apply in relation to any proceeding before an adjudicating

H
TOFAN SINGH v. STATE OF TAMIL NADU 855
[INDIRA BANERJEE, J.]

officer as they apply in relation to any prosecution for an A
offence under this Act.
xxx xxx xxx
62. Certain offences to be non-cognizable.- Subject to the
provisions of section 45 and notwithstanding anything
contained in the Code of Criminal Procedure, 1973 (2 of B
1974), an offence punishable under section 56 shall be
deemed to be non-cognizable within the meaning of that
Code.”
205. The Railway Property (Unlawful Possession) Act, 1966, as
stated in its preamble, is a comprehensive Act to deal with unlawful C
possession of goods entrusted to the Railways as a common carrier and
to make the punishment for such offences more deterrent. The dominant
object, or to be precise, the only object of the Railway Property (Unlawful
Possession) Act, 1966 is to punish theft, dishonest misappropriation or
unlawful possession of railway property. D
206. Some of the provisions of the Railway Property (Unlawful
Possession) Act are:-
3. Penalty for theft, dishonest misappropriation or unlawful
possession of railway property.— Whoever commits theft, or
dishonestly misappropriates or is found, or is proved] to have E
been, in possession of any railway property reasonably
suspected of having been stolen or unlawfully obtained shall,
unless he proves that the railway property came into his
possession lawfully, be punishable—
(a) for the first offence, with imprisonment for a term which F
may extend to five years, or with fine, or with both and in the
absence of special and adequate reasons to be mentioned in
the judgment of the court, such imprisonment shall not be
less than one year and such fine shall not be less than one
thousand rupees;
G
(b) for the second or a subsequent offence, with imprisonment
for a term which may extend to five years and also with fine
and in the absence of special and adequate reasons to be
mentioned in the judgment of the court, such imprisonment
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856 SUPREME COURT REPORTS [2020] 12 S.C.R.

A shall not be less than two years and such fine shall not be
less than two thousand rupees.
Explanation.—For the purposes of this section, “theft” and
“dishonest misappropriation” shall have the same meanings
as assigned to them respectively in section 378 and section
B 403 of the Indian Penal Code (45 of 1860).
4. Punishment for abetment, conspiracy or connivance at
offences.- Whoever abets or conspires in the commission of
an offence punishable under this Act, or any owner] or
occupier of land or building, or any agent of such owner or
C occupier incharge of the management of that land or building,
who wilfully connives at an offence against the provisions of
this Act, shall be punishable with imprisonment for a term
which may extend to five years, or with fine, or with both.
Explanation.—For the purposes of this section, the words
D “abet” and “conspire” shall have the same meanings as
assigned to them respectively in sections 107 and 120A of the
Indian Penal Code (45 of 1860.)
5. Offences under the Act not to be cognizable.—
Notwithstanding anything contained in the Code of Criminal
E Procedure, 1898 (5 of 1898), an offence under this Act shall
not be cognizable.
6. Power to arrest without warrant.—Any superior officer or
member of the Force may, without an order from a Magistrate
and without a warrant, arrest any person who has been
F concerned in an offence punishable under this Act or against
whom a reasonable suspicion exists of his having been so
concerned.
xxx xxx xxx
8. Inquiry how to be made.—(1) When an officer of the Force
G receives information about the commission of an offence
punishable under this Act, or when any person is arrested]
by an officer of the Force for an offence punishable under
this Act or is forwarded to him under section 7, he shall
proceed to inquire into the charge against such person
H
TOFAN SINGH v. STATE OF TAMIL NADU 857
[INDIRA BANERJEE, J.]

(2) For this purpose the officer of the Force may exercise the A
same powers and shall be subject to the same provisions as
the officer incharge of a police-station may exercise and is
subject to under the Code of Criminal Procedure, 1898 (5 of
1898), when investigating a cognizable case: Provided that—
(a) if the officer of the Force is of opinion that there is sufficient B
evidence or reasonable ground of suspicion against the
accused person, he shall either admit him to bail to appear
before a Magistrate having jurisdiction in the case, or forward
him in custody to such Magistrate;
(b) if it appears to the officer of the Force that there is not C
sufficient evidence or reasonable ground of suspicion against
the accused person, he shall release the accused person on
his executing a bond, with or without sureties as the officer
of the Force may direct, to appear, if and when so required
before the Magistrate having jurisdiction, and shall make a
full report of all the particulars of the case to his official D
superior.
9. Power to summon persons to give evidence and produce
documents.—(1) An officer of the Force shall have power to
summon any person whose attendance he considers necessary
either to give evidence or to produce a document, or any other E
thing in any inquiry which such officer in making for any of
the purposes of this Act.
(2) A summons to produce documents or other things may be
for the production of certain specified documents or things
or for the production of all documents or things of a certain F
description in the possession or under the control of the person
summoned.
(3) All persons, so summoned, shall be bound to attend either
in person or by an authorised agent as such officer may direct;
and all persons so summoned shall be bound to state the truth G
upon any subject respecting which they are examined or make
statements and to produce such documents and other things
as may be required:

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858 SUPREME COURT REPORTS [2020] 12 S.C.R.

A Provided that the exemptions under sections 132 and 133 of
the Code of Civil Procedure, 1908 (5 of 1908), shall be
applicable to requisitions for attendance under this section.
(4) Every such inquiry as aforesaid, shall be deemed to be a
“judicial proceeding” within the meaning of sections 193 and 228
B of the Indian Penal Code (45 of 1860).”
207. Even though the offences under the Railway Property
(Unlawful Possession) Act are not cognizable, they entail punishment of
imprisonment for a term which may extend to five years. Any member
of the force may exercise power of arrest without an order from a
C magistrate and without warrant even on mere suspicion, if reasonable.
208. An officer of the force on receipt of information about
commission of the offences punishable under the Act may inquire into
the charges against the person and for this purpose the officer might
exercise “the same powers and shall be subject to the same provisions
D as the Officer in Charge of a Police Station may exercise and is subject
to under the Code of Criminal Procedure, 1898, when investigating a
cognizable case.” Proceedings before the officer are in the nature of
judicial proceedings.
209. It is true, as argued by Mr. Jain, that an enquiry under the
E Central Excise Act, 1944 or the Customs Act 1962 is a judicial proceeding
within the meaning of Sections 193 and 198 of the Indian Penal Code, by
virtue of Section 14(4) of the Central Excise Act and Section 108(4) of
the Customs Act, which are identical provisions and read “Every such
inquiry as aforesaid shall be deemed to be a judicial proceeding within
the meaning of Section 193 and Section 228 of the Indian Penal Code
F (Act 45 of 1860)” Section 40(4) of FERA and Section 9(4) of the
Railway Property (Unlawful Possession Act) 1966 are also identical to
and/or verbatim reproductions of Section 14(4) of the Central Excise
Act and Section 108(4) of the Customs Act.
210. Sections 193 and 228 of the IPC are set out hereinbelow for
G convenience:
“193. Punishment for false evidence.—Whoever intentionally
gives false evidence in any stage of a judicial proceeding, or
fabricates false evidence for the purpose of being used in
any stage of a judicial proceeding, shall be punished with
H
TOFAN SINGH v. STATE OF TAMIL NADU 859
[INDIRA BANERJEE, J.]

imprisonment of either description for a term which may A
extend to seven years, and shall also be liable to fine;
and whoever intentionally gives or fabricates false evidence
in any other case, shall be punished with imprisonment of
either description for a term which may extend to three years,
and shall also be liable to fine. B
Explanation 1.—A trial before a Court-martial * * * is a
judicial proceeding.
Explanation 2.—An investigation directed by law preliminary
to a proceeding before a Court of Justice, is a stage of judicial
proceeding, though that investigation may not take place C
before a Court of Justice.
228. Intentional insult or interruption to public servant sitting
in judicial proceeding.—Whoever intentionally offers any
insult, or causes any interruption to any public servant, while
such public servant is sitting in any stage of a judicial D
proceeding, shall be punished with simple imprisonment for
a term which may extend to six months, or with fine which
may extend to one thousand rupees, or with both.”
211. An offence punishable with imprisonment under the Central
Excise Act, the Customs Act, the FERA, the Railway Property (unlawful E
possession) Act or any other similar enactment is triable by the Court of
competent jurisdiction.
212. Investigation into offences under the Acts mentioned above,
namely the Central Excise Act, the Customs Act, the FERA (now
repealed), the Railway Property (unlawful possession) Act, termed as F
inquiry, are held by departmental officials duly authorized to enable the
concerned authorities to decide whether a complaint should be filed before
the Competent Court. If the information gathered and/or materials
obtained so warrant, a complaint is filed.
213. An inquiry under the Central Excise Act by any Central Excise G
Officer, empowered by the Central Government, or under the Customs
Act, by any officer of customs empowered by general or special order
of the Principal Commissioner/Commissioner of Customs or under the
FERA by an Enforcement Officer or under the Railway Property
(Unlawful Possession) Act 1961 by an officer of the Railway Protection
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860 SUPREME COURT REPORTS [2020] 12 S.C.R.

A Force is not the same as a proceeding in a Court of Law or Tribunal.
Such an inquiry is preliminary to trial by a Court of competent jurisdiction.
It is akin to an enquiry conducted by a public servant under any other
law with penal provisions including an enquiry under the NDPS Act.
214. Investigation under these Acts have been given the status of
B judicial proceedings within the meaning of Sections 193 and 228 of the
IPC, unlike investigation of an offence under the NDPS Act. The only
difference is that the person making a statement in an investigation under
any of these Acts, is burdened with the consequences of giving false
evidence in any other judicial proceedings including proceedings in a
Court of Law, punishable with imprisonment which may extend to three
C years and also fine [Section 193 IPC] or of intentional insult or interruption
to a public servant at any stage of a “judicial proceeding” punishable
with imprisonment which might extend to six months or with fine or both
[Section 228 IPC].
215. Since investigation under the Acts referred to above, namely
D the Central Excise Act, the Customs Act, the Railway Property (Unlawful
Possession) Act has been given the status of judicial proceedings to
deter persons from making false statements or otherwise intentionally
hampering the investigation, the Legislature has deemed it appropriate
to use the expression “shall have power to summon any person whose
E presence he considers necessary either to give evidence or to produce a
document”
216. The expression ‘evidence’ has apparently been used to create
an aura of proceedings, akin to proceedings in a Court of Law. However
the admissibility of the statements and/or documents obtained is not any
F higher only because the proceedings are judicial proceedings and the
expression “evidence” has been used. The prosecution would still have
to prove its case at the time of trial by adducing evidence. The so called
‘evidence’ in the inquiry is not the same as evidence in a trial. Documents
would still have to be tendered and proved at the time of trial. Whether
any documents and/or statements obtained in course of investigation
G would at all be admissible in evidence at the trial and if so, the extent to
which they would be relevant, would be decided by the Court trying the
offence, having regard to the applicable law.
217. It is true that an Inquiry or investigation under the NDPS Act
is not a judicial proceeding, just as an Inquiry or investigation by the
H
TOFAN SINGH v. STATE OF TAMIL NADU 861
[INDIRA BANERJEE, J.]

police under the Cr.P.C. is not a judicial proceeding. However, a casual A
observation in a judgment of this Court, that “a police officer never acts
judicially” in the context of an analysis of the reasons for inclusion of
Section 25 of the Evidence Act, under which no confession to a police
officer is to be proved as against a person accused of any offence,
cannot be construed to lay down the proposition of law, that a confessional
B
statement made to an officer in course of an enquiry before that officer
cannot be tendered or proved in evidence, if the enquiry is not a judicial
proceeding. Nor can such an observation be construed as a reverse
proposition that all confessions in an enquiry before an officer, who is
not police officer, but deemed to be a police officer for all purposes, with
all the powers of a police officer including the power akin to Section C
173(2) of the Cr.P.C, can be tendered and proved in evidence, only
because the enquiry is a judicial proceeding within the meaning of Section
193 or 228 of the IPC, in the sense that a person intentionally giving
false evidence in such proceeding, or intentionally insulting or causing
interruption to a person holding such an enquiry is punishable with
D
imprisonment.
218. Significantly the Constitution Benches in Romesh Chandra
Mehta (supra) and Illias (supra) have made a distinction between
police officers and other officers exercising the powers of a police officer
for investigation of an offence under a special act by comparing the
restricted police powers of the latter with the far wider powers of the E
former including those under the Police Acts.
219. The fact that the provisions of Chapter V of the NDPS Act,
which confer powers of entry, search, seizure, arrest, investigation and
inquiry on certain officers, do not expressly use the phrase “collect
evidence” is not really material to the issue of whether such officers are F
police officers to attract the bar of Section 25 of the Evidence Act.
220. Section 67 of the NDPS Act enables an officer referred to in
Section 42 authorized by the Central or State Government to (i) call for
information from any person, (ii) require any person to produce or deliver
any useful or relevant document or thing and (iii) to examine any person G
acquainted with the facts and circumstances of the case, during the
course of any inquiry in connection with the contravention of any provision
of the NDPS Act.

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862 SUPREME COURT REPORTS [2020] 12 S.C.R.

A 221. Similarly, an officer invested under Section 53 of the NDPS
Act with the power of Officer in Charge of a Police Station for the
purpose of investigation of an offence under the NDPS Act has the
power to require the attendance of any person who appears to be
acquainted with the facts and circumstances of the case and to examine
such person.
B
222. It is difficult to appreciate how the fact that an inquiry under
the Central Excise Act or the Customs Act or the FERA or any other
Act which might be deemed to be a judicial proceeding to attract the
penal provisions of Sections 193 and 228 of IPC, should make any
difference to the admissibility in evidence, of the statements made in an
C enquiry under the NDPS Act.
223. It is true that all offences under the NDPS Act are cognizable
under Section 37 of the NDPS Act. As observed above, some of the
offences under the Central Excise Act and the Customs Act are also
cognizable. Under Section 2(c) “cognizable offence” means an offence
D for which a police officer may arrest without warrant and under Section
2(l) defines “non cognizable offence” to mean an offence for which a
police officer has no authority to arrest without warrant. Even though
offences under the Railway Property (Unlawful Possession) Act are
not cognizable, Section 6 of the said Act empowers any superior officer
E or member of the Railway Protection Force to arrest any person
concerned with an offence under the said Act, without an order from a
Magistrate and without a warrant.
224. Section 25 of the Evidence Act does not differentiate between
evidence in a trial for non cognizable offence and evidence in a trial for
F cognizable offence. The admissibility of evidence does not depend on
whether an offence is ‘cognizable’ or non-cognizable’. The mere fact
that an offence was cognizable, enabling the police to arrest without
warrant, should not make any difference to the admissibility or the
probative value of the evidence adduced by the prosecution during the
trial of the offence.
G
225. Significantly, as observed above, some of the offences under
the Central Excise Act and the Customs Act are also cognizable. It may
also be pertinent to point out that while all offences under the NDPS Act
including those punishable with imprisonment up to one year are
cognizable, offences in the Railway Property (Unlawful possession) Act
H
TOFAN SINGH v. STATE OF TAMIL NADU 863
[INDIRA BANERJEE, J.]

1966, punishable with imprisonment of seven years, have been made A
non cognizable.
226. There can be no doubt that the mandatory provisions of the
NDPS Act to ensure fair trial of the accused must be enforced. However,
over-emphasis on the principles of natural justice in drug-trafficking cases
can be a major hindrance to the apprehension of offenders. In offences B
under the NDPS Act, substantial compliance should be treated as
sufficient for the procedural requirements, because such offences
adversely affect the entire society. The lives of thousands of persons
get ruined.
227. There can be no doubt that the fundamental rights under C
Article 20(3) and 21 are important fundamental rights which occupy a
pride of place in the Indian Constitution. These rights are non negotiable
and have to zealously be protected, with alacrity.
228. Legislature lacks the power to enact any law which
contravenes fundamental rights guaranteed under the Constitution. Any D
statute and/or statutory provision which violates a fundamental right is
liable to be struck down as ultra vires, unless protected from challenge
on the ground of violation of fundamental rights by Article 31(A), 31(B)
or 31(C) of the Constitution of India.
229. While Article 21 of the Constitution of India provides that no E
person shall be deprived of his life or liberty, except according to procedure
established by law, Article 20 (3) provides that no person accused of
any offence shall be compelled to be a witness against himself.
230. The right to live has liberally been construed by this Court to
mean the right to live with dignity. All the human rights enumerated in F
the Universal Declaration of Human Rights (UDHR) adopted on 10th
December 1948 by the United Nations come within the ambit of the
right to live under Article 21, of which no person can be deprived except
by following a procedure established by law.
231. The Right to live under Article 21 also includes the right to
G
privacy. This right is an extremely valuable right, intrinsic in Article 21.
In K. S. Puttaswamy and Anr. v. Union of India and Ors.46, a nine-
Judge Bench of this Court unanimously held that the right to privacy is a
fundamental right. However, the question of whether provisions of entry,
46
(2017) 10 SCC 1 H
864 SUPREME COURT REPORTS [2020] 12 S.C.R.

A search, seizure and arrest would violate the right to privacy of a person
accused of an offence was not in issue. Be that as it may, reference
may be made to the following observations of this Court:-
“Chandrachud, J. (for Khehar, CJ., Agrawal, J., himself and
Nazeer, J.
B “313. Privacy has been held to be an intrinsic element of the
right to life and personal liberty under Article 21 and as a
constitutional value which is embodied in the fundamental
freedoms embedded in Part III of the Constitution. Like the
right to life and liberty, privacy is not absolute. The limitations
C which operate on the right to life and personal liberty would
operate on the right to privacy. Any curtailment or deprivation
of that right would have to take place under a regime of law.
The procedure established by law must be fair, just and
reasonable. The law which provides for the curtailment of
the right must also be subject to constitutional safeguards.”
D
Chelameswar, J.
“377.It goes without saying that no legal right can be
absolute. Every right has limitations. This aspect of the matter
is conceded at the Bar. Therefore, even a fundamental right
E to privacy has limitations. The limitations are to be identified
on case-to-case basis depending upon the nature of the
privacy interest claimed. There are different standards of
review to test infractions of fundamental rights. While the
concept of reasonableness overarches Part III, it operates
differently across Articles (even if only slightly differently
F across some of them). Having emphatically interpreted the
Constitution’s liberty guarantee to contain a fundamental right
to privacy, it is necessary for me to outline the manner in
which such a right to privacy can be limited. I only do this to
indicate the direction of the debate as the nature of limitation
G is not at issue here.
xxx xxx xxx
380.The just, fair and reasonable standard of review under
Article 21 needs no elaboration. It has also most commonly
been used in cases dealing with a privacy claim hitherto.
H
TOFAN SINGH v. STATE OF TAMIL NADU 865
[INDIRA BANERJEE, J.]

[District Registrar and Collector v. Canara Bank, (2005) 1 A
SCC 496 : AIR 2005 SC 186] , [State of Maharashtra v. Bharat
Shanti Lal Shah, (2008) 13 SCC 5] Gobind [Gobind v. State
of M.P., (1975) 2 SCC 148 : 1975 SCC (Cri) 468] resorted to
the compelling State interest standard in addition to the Article
21 reasonableness enquiry. From the United States, where the
B
terminology of “compelling State interest” originated, a strict
standard of scrutiny comprises two things—a “compelling State
interest” and a requirement of “narrow tailoring” (narrow
tailoring means that the law must be narrowly framed to
achieve the objective). As a term, “compelling State interest”
does not have definite contours in the US. Hence, it is critical C
that this standard be adopted with some clarity as to when
and in what types of privacy claims it is to be used. Only in
privacy claims which deserve the strictest scrutiny is the
standard of compelling State interest to be used. As for others,
the just, fair and reasonable standard under Article 21 will
D
apply. When the compelling State interest standard is to be
employed, must depend upon the context of concrete cases.
However, this discussion sets the ground rules within which a
limitation for the right to privacy is to be found.”
Bobde, J.
E
“403. …….. Nor is the right to privacy lost when a person
moves about in public. The law requires a specific
authorization for search of a person even where there is
suspicion.”
Nariman, J. F
“525….. In the ultimate analysis, the fundamental right to
privacy, which has so many developing facets, can only be
developed on a case-to-case basis. Depending upon the
particular facet that is relied upon, either Article 21 by itself
or in conjunction with other fundamental rights would get G
attracted.
526. But this is not to say that such a right is absolute. This
right is subject to reasonable regulations made by the State
to protect legitimate State interests or public interest. However,
when it comes to restrictions on this right, the drill of various
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866 SUPREME COURT REPORTS [2020] 12 S.C.R.

A articles to which the right relates must be scrupulously
followed. For example, if the restraint on privacy is over
fundamental personal choices that an individual is to make,
State action can be restrained under Article 21 read with
Article 14 if it is arbitrary and unreasonable; and under
Article 21 read with Article 19(1)(a) only if it relates to the
B
subjects mentioned in Article 19(2) and the tests laid down
by this Court for such legislation or subordinate legislation
to pass muster under the said article. Each of the tests evolved
by this Court, qua legislation or executive action, under Article
21 read with Article 14; or Article 21 read with Article 19(1)(a)
C in the aforesaid examples must be met in order that State action
pass muster. In the ultimate analysis, the balancing act that is
to be carried out between individual, societal and State
interests must be left to the training and expertise of the
judicial mind.
D 536. This reference is answered by stating that the inalienable
fundamental right to privacy resides in Article 21 and other
fundamental freedoms contained in Part III of the Constitution
of India. M.P. Sharma [M.P. Sharma v. Satish Chandra, AIR
1954 SC 300 : 1954 Cri LJ 865 : 1954 SCR 1077] and the
majority in Kharak Singh [Kharak Singh v. State of U.P., AIR
E 1963 SC 1295 : (1963) 2 Cri LJ 329 : (1964) 1 SCR 332] , to
the extent that they indicate to the contrary, stand overruled.
The later judgments of this Court recognising privacy as a
fundamental right do not need to be revisited. These cases
are, therefore, sent back for adjudication on merits to the
F original Bench of three Hon’ble Judges of this Court in light
of the judgment just delivered by us.”
Kaul, J.
“629. The right of an individual to exercise control over his
personal data and to be able to control his/her own life would
G also encompass his right to control his existence on the
internet. Needless to say that this would not be an absolute
right. The existence of such a right does not imply that a
criminal can obliterate his past…...”

H
TOFAN SINGH v. STATE OF TAMIL NADU 867
[INDIRA BANERJEE, J.]

232. In Maneka Gandhi v. Union of India47, this Court held that A
the procedure established by the law for depriving a person of his life or
personal liberty must be fair, reasonable and free of arbitrariness. A
procedure for deprivation of liberty, which is arbitrary and oppressive
can not be said to be in conformity with Article 14 and would thus not
clear the test of fair and reasonable procedure in Article 21 of the
B
Constitution.
233. While the right to a fair trial by an impartial Court and/or
Tribunal is a human right under the UDHR and an essential concomitant
of the fundamental rights, at the same time, the fairness of trial has to be
seen not only from the point of view of the accused, but also from the
point of view of the victim and the society. A crime under the NDPS Act C
is a crime against society and not just an individual or a group of
individuals. While the safeguards in the NDPS Act must scrupulously be
adhered to prevent injustice to an accused, the Court should be vigilant
to ensure that guilty offenders do not go scot free by reason of over
emphasis on technicalities. Substantial justice must be done. Every piece D
of evidence should be objectively scrutinized, evaluated and considered
to arrive at a final decision.
234. Article 20(3) of the Constitution gives protection to a person:
(i) accused of an offence
E
(ii) against compulsion “to be a witness”and
(iii) against himself
235. Compulsion is an essential ingredient of the bar of Article
20 (3) of the Constitution. Article 20 (3) does not bar the admission of a
statement, confessional in effect, which is made without any inducement, F
threat or promise, even though it may have subsequently been retracted.
The article also does not debar the accused from voluntarily offering
himself to be examined as a witness. The constitutional protection against
compulsion to be a witness is available only to persons “accused of an
offence”, and not persons other than the accused. It is a protection
G
against compulsion to be a witness and it is a protection against compulsion
resulting in giving evidence against himself.

47
AIR 1978 SC 597 H
868 SUPREME COURT REPORTS [2020] 12 S.C.R.

A 236. As held in Balkishan A Devidayal vs State of
Maharashtra48, a formal accusation may be made in an FIR or a formal
complaint or any other formal document or notice served which ordinarily
results in his prosecution in court. The protection would not apply before
the person is made as an accused in a formal complaint.
B 237. In Nandini Satpathy v. P.L. Dani and Anr.49 cited by Mr.
Jain, a three-Judge Bench of this Court held that the protection of Article
20(3) goes back to the stage of investigation and that accordingly he is
entitled to refuse to answer incriminating questions. An accused has the
right of silence. As held in Nandini Satpathy (supra) any mode of
pressure, subtle or crude, mental or physical, direct or indirect,
C but sufficiently substantial, applied by the policeman for obtaining
information from an accused strongly suggestive of guilt, becomes
compelled testimony. This principle would apply with equal force to
any testimony in an investigation before a person other than a police
officer including an officer under the NDPS Act.
D 238. Compulsion may be in many forms. It may be physical or
mental. However, mental compulsion takes place when the mind has
been so conditioned by some extraneous process, as to render the making
of the statement involuntary and therefore, extorted. This proposition
finds support from the judgment of this Court in State of Bombay v.
E Kathi Kalu Oghad50; Poolpandi and Ors. v. Superintendent Central
Excise and Ors.51. Statements obtained by continuous and prolonged
interrogation for hours at a stretch in unhealthy, unhygienic, uncomfortable
and inconvenient conditions, without proper food, drinking water,
washroom facilities etc. may not be accepted as voluntary.

F 239. The immunity under Article 20(3) does not extend to
compulsory production of documents or material objects or to compulsion
to give specimen writing, specimen signature, thumb impression, finger
prints or blood samples. However, compulsion regarding documents
attracts the bar of Article 20 (3) if the documents convey personal
knowledge of the accused relating to the charge. Reference may be
G

48
(1980) 4 SCC 600
49
(1978) 2 SCC 424
50
AIR 1961 SC 1808
51
AIR 1992 SC 1795
H
TOFAN SINGH v. STATE OF TAMIL NADU 869
[INDIRA BANERJEE, J.]

made to the judgments of this Court in Mohamed Dastagir v. State of A
Madras52 and State of Bombay v. Kathi Kalu Oghad53. Similarly, this
Court has frowned upon narco analysis as the statement so made is
induced and, therefore, involuntary.
240. In Sampath Kumar v. Enforcement Office, Enforcement
Directorate, Madras 54, this Court held that when a person was B
summoned and examined under Section 40 of the Foreign Exchange
Regulation Act, 1973, it could not be presumed that the statement was
obtained under pressure or duress. The statement cannot be attacked
on the ground of infringement of the constitutional guarantee of protection
against is incrimination under Article 20(3) of the Constitution of India.
C
241. There can be no doubt that any confession made under
compulsion to any person whether or not a police officer would attract
Article 20(3) of the Constitution. Any confession made under compulsion
would also be hit by Section 24 of the Evidence Act. Confession under
compulsion is no evidence in the eye of law.
D
242. A confessional statement, if not obtained by compulsion, as
judicially explained, would be hit by Sections 25 and 26 only if such
statement is made to a police officer (Section 25 of the Evidence Act) or
while in the custody of a police officer and not in the presence of a
Magistrate (Section 26 of the Evidence Act). It is now settled by the
Constitution Bench in Badku Joti Sawant (supra) and Romesh E
Chandra Mehta (supra) and a plethora of judgments of this Court that
Section 25 would only apply to a police officer or an officer who exercises
all the powers of a police officer including the power of filing a police
report under Section 173 of the Cr.PC. An officer under the NDPS Act
does not have the power to file a police report under Section 173 of the F
Cr.P.C.
243. A confessional statement does not automatically result in the
conviction of an accused offender. Such statements have to be tendered
and proved in accordance with the law. The evidentiary value of the
statement which is confessional in nature has to be weighed and assessed G
by the Court at the trial.

52
AIR 1960 SC 756
53
1961 SC 1808
54
1997 8 SCC 358
H
870 SUPREME COURT REPORTS [2020] 12 S.C.R.

A 244. As stated by this Court in Vishnu Pratap Sugar Works Pvt.
Ltd. v. Chief Inspector of Stamp, U.P.55, a Statute is an edict of the
legislature and has to be construed according to “the intent of those that
make it”.
245. If a statutory provision is open to more than one interpretation,
B the Court has to choose that interpretation which represents the true
intention of the legislature. It is to be presumed that in enacting a post
constitutional law the legislative intent could not have been to violate any
fundamental right.
246. In ascertaining the intention of the legislature the Court is to
examine two aspects, the meaning of the words and phrases used in the
C
statute and the purpose and object or the reason and spirit pervading
through the statute.
247. Legislative intention, that is the true legal meaning of an
enactment, is deduced by considering the meaning of the words used in
the enactment, in the light of any discernible purposes or object of the
D enactment. When any question arises as to the meaning of any provision
in a statute, it is proper to read that provision in the context of the intention
of the legislature. The intention of the Legislature must be found by
reading the statute as a whole.
248. A statute or any statutory provision must be construed and
E interpreted in a manner that makes the statute effective and operative
on the principle expressed in the maxim ut res magis valeat quam pereat
and/or in other words, the principle that courts while pronouncing on the
constitutionality of a statute starts with the presumption in favour of
constitutionality and prefer a construction which keeps the statute within
the competence of the legislature.
F 249. Thus when a statute is vague, the Court will give such an
interpretation that keeps the statute in conformity with the fundamental
rights. Similarly, if a statute is capable of two interpretations one of
which violates the fundamental rights and the other of which protects
the fundamental rights the court would opt for the latter.
G 250. When a statutory provision is clear and there is no ambiguity,
this Court cannot alter that provision by its interpretation. To do so, would
be to legislate, which this Court is not competent to do. If a provision is
free from ambiguity or vagueness, and is clear, but violative of a
fundamental right, the Court will have to strike the same down. Any
55
H AIR 1968 SC 102
TOFAN SINGH v. STATE OF TAMIL NADU 871
[INDIRA BANERJEE, J.]

omission in a statute cannot be filled in by Court as to do that would A
amount to the legislation and not construction. The Court cannot fill in
casus omissus and language permitting Court should avoid creating casus
omissus where there is none. In the interpretation of statute the Courts
must always presume that legislature inserted every part thereof for a
purpose and the legislative intention is that every part of the statute
B
should have effect.
251. The attention of this Bench has not been drawn to any
ambiguous provision capable of two or more interpretations, one of which
would be in consonance with the fundamental rights and the other violative
of the fundamental rights. Counsel appearing in support of the appeals
have in effect invited this Court to introduce further safeguards, not C
contemplated by the legislature in the NDPS Act through the process of
interpretation.
252. The proposition of law in Directorate of Revenue and
Another v. Mohammed Nisar Holia56cited by Mr. Jain is well settled.
There is no doubt that the NDPS Act contains severe penal provisions.
There can also be no dispute with the proposition that when harsh D
provisions, lead to a severe sentence, a balance has to be struck between
the need of the law and enforcement thereof on the one hand and the
protection of a citizen from oppression and injustice. The requirements
of Section 42 and 43 have to be complied with strictly and in letter and
spirit.
253. There can be no quarrel with the proposition that the power E
of search, seizure and arrest is founded upon the competent officer duly
empowered having “reason to believe”, which might be based on personal
knowledge, or secret information provided by an informant whose name
need not be disclosed.
254. It is also obvious that a person who does not break the law is F
entitled to enjoy his life and liberty, which includes the right not to be
disturbed in his room, or for that matter elsewhere, without complying
with the mandatory safeguards of the NDPS Act. The presumption under
Section 66 of the NDPS Act in respect of the truth and contents of
documents seized, would not apply to an illegible fax, the contents of
which could not be proved. Mohammad Nisar Holia (supra) does not G
say that a statement made to an officer invested with powers under
Section 53 or 67 cannot be used against the accused. The findings with
regard to the illegible fax were rendered in the facts and circumstances
of the case.
56
(2008) 2 SCC 370 H
872 SUPREME COURT REPORTS [2020] 12 S.C.R.

A 255. In State of Punjab v. Baldev Singh57, this Court observed
that the question of whether or not the procedure prescribed under the
NDPS Act for personal search had been followed and the requirements
of the relevant sections in this regard satisfied was a matter of trial. It
would neither be feasible nor possible to lay down any absolute formula.
The observation is equally applicable to entry, search, seizure, arrest,
B holding of inquiry/investigation including the examination of persons.
256. As observed above, an inquiry/investigation under the NDPS
Act does not culminate in any report. The inquiry is in the nature of a
preliminary inquiry which may lead to the filing of a complaint in the
Special Court. The Prosecution has to prove its case before the Special
Court which would examine, analyze, assess and weigh the evidence on
C record. Suspicion can in no circumstances be a substitute for evidence.
As held by this Court in State of Punjab v. Baldeo Singh58, Ritesh
Chakaravarty v. State of Madhya Pradesh59, Noor Aga (supra) and
numerous other cases, the severer the punishment for the offence, the
stricter is the degree of proof. All the safeguards provided in the NDPS
Act must be scrupulously followed.
D
257. In Badku Jyoti Savant (supra), the Constitution Bench of
this Court considered Section 21(2) of the Central Excise Act (then
known as Central Excise and Salt Act) which provided “for this purpose
the Central Excise Officer may exercise the same powers and shall
be subject to the same provisions as the officer-in-charge of a police
E station may exercise and is subject to under the Code of Criminal
Procedure, 1898 (5 of 1898), when investigating a cognizable case”.
258. The powers conferred on Central Excise Officer by Section
21(2) of the Central Excise Act (then known as Central Excise and Salt
Act) are identical to those of an officer under the NDPS Act, invested
with the powers of an Officer in Charge of a police station for the purpose
F of investigation of an offence under the NDPS Act.
259. Construing Section 21(2) in Badku Joti Savant (supra), the
Constitution Bench held that Central Excise Officers do not have all the
powers of a police officer qua investigation, which necessarily includes
the power to file a report under Section 173 of the Cr.P.C.
G 260. The Constitution Bench judgment has been followed by two
Constitution Bench judgments that is Ramesh Chandra Mehta (supra)
and Illias v. Collector of Customs (supra) referred to above and has
57
(1999) 6 SCC 172
58
(1999) 6 SCC 172
H 59
(2006) 12 SCC 321
TOFAN SINGH v. STATE OF TAMIL NADU 873
[INDIRA BANERJEE, J.]

held the field for over 50 years. As observed above, in Raj Kumar A
Karwal (supra), this Court made a comparison of the power of a Central
Excise Officer under Section 21(2) with those of officer under NDPS
Act under Section 50 as also a comparison of Section 36A(1)(d) with
Section 190 of the Cr.P.C regarding the manner of taking cognizance of
offences and found that the judgment of three Constitution Benches
was binding on a two Judge Bench. B
261. It is obvious that no two statutes can be identical. There
may be differences. If there were no differences, It would not be
necessary to enact a separate statute. The question is whether there
were any such differences which can logically lead to the conclusion
that the law as interpreted in those judgments would not apply to the
NDPS Act. C
262. For the reasons discussed, I am firmly of the view that the
differences adverted to, do not make any difference to the law laid down
in Badku Joti Savant (supra) followed and affirmed in Romesh
Chandra Mehta (supra) and Iliyas (supra) and subsequent decisions,
which have held the field for over fifty years.
D
263. The proposition of law laid down by the Constitution Bench
in the judgments referred to above and, in particular, Romesh Chandra
Mehta (supra) is that, the test to determine whether an officer is deemed
to be a police officer within the meaning of Section 25 of the Evidence
Act is, whether such officer has all the powers of a police officer including
the power to file a report under Section 173 of the Cr.P.C. E
264. In my view, the question of whether in reality or substance
there is any difference between a complaint under Section 36A (1)(d) of
the NDPS Act filed by an authorized officer of the Central Government
or the State Government and a police report filed under Section 173 of
the Cr.P.C, raised by the Appellant cannot be decided by this Bench of
three-Judges in view of three five-Judge Constitution Bench judgments F
referred to above, which are binding on this Bench.
265. Similarly, the question of whether an investigating officer
invested with the powers of Officer in Charge of a police station for the
purpose of investigation of an offence under a special Act like the NDPS
Act is empowered to file a police report under Section 173 of the Cr.P.C
cannot also be reopened by this Bench, in view of five-Judge Constitution G
Bench judgments referred to above.
266. The law which emerges from the Constitution Bench
judgments of the Supreme Court in Badku Joti Savant (supra), Romesh
Chandra Mehta (surpa() and Iilias (supra) is that, an officer can be
deemed to be a police officer within the meaning of Section 25 of the
Evidence Act: H
874 SUPREME COURT REPORTS [2020] 12 S.C.R.

A (i) if the officer has all the powers of a police officer qua
investigation, which includes the power to file a police report under
Section 173 of the Cr.P.C.,
(ii) the power to file a police report under Section 173 of Cr.P.C is
an essential ingredient of the power of a police officer and
(iii) the power to file a police report under Section 173 of Cr.P.C
B
has to be conferred by statute.
267. A statute may expressly make Section 173 of the Cr.P.C
applicable to inquiries and investigations under that statute. However, in
the case of a statute like the NDPS Act, where the provisions of the
Cr.P.C do not apply to any inquiry/investigation, except as provided therein,
C it cannot be held that the officer has all the powers of a police officer to
file a report under Section 173 of the Cr.P.C. The NDPS Act does not
even contain any provision for filing a report in a Court of law which is
akin to a police report under Section 173 of the Cr.P.C.
268. As per the well established norms of judicial discipline and
propriety, a Bench of lesser strength cannot revisit the proposition laid
D down by at least three Constitution Benches, that an officer can be
deemed to be a police officer within the meaning of Section 25 of the
Evidence Act only if the officer is empowered to exercise all the powers
of a police officer including the power to file a report under Section 173
of the Cr.P.C.
E 269. With the greatest of respect, Counsel appearing in support of
the appeals have made general arguments with regard to the differences
between provisions of the Central Excise Act or the Customs Act with
the NDPS Act. However, they have not specifically shown how exactly
the powers of NDPS officers conducting an investigation of an offence
under the NDPS Act are different from those of the Central Excise
F Officers, Customs officers and/or Railway Protection Force Officers
conducting an inquiry into an offence under the provisions of those Acts.
270. As observed above, the provisions of the Cr.P.C do not apply
to an inquiry/investigation under the NDPS Act except to the limited
extent provided in Section 50(5) and 51. Section 173 of the Cr.P.C has
not been made applicable to the NDPS Act.
G 271. For the reasons discussed above, I am of the view that the
Judgment of this Court in Raj Kumar Karwal (supra), which has
reaffirmed the verdict of three Constitution Benches does not require
reconsideration. Nor does Kanhaiyalal (supra) require reconsideration.

H Kalpana K. Tripathy Reference answered.