Section 53 of the NDPS Act, 1985 – Power to invest officers of certain departments with powers of an officer-in-charge of a police station.

(1) A statement made and signed by a person before any officer empowered under section 53 for the investigation of offenses, during any inquiry or proceedings by such officer, shall be relevant for proving, in any prosecution for an offense 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 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 believes that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice.

On 29th October 2020, the Supreme Court of India held that the officers who are conferred with powers under Section 53 of the NDPS Act, 1985 are also ‘police officers’ that come within the ambit of Section 25 of the India Evidence Act, 1872.

The main legal issues put forth to the Supreme Court are:

1. Whether investigating officers under the NDPS Act, 1985 would come under the ambit of being considered a ‘police officer’?
2. Whether statements recorded by these investigating officers under Section 67 of the NDPS Act, 1985 can be considered as a confessional statement that can be used against the accused, regardless of the officer being considered a ‘police officer’?

In the case, Tofan Singh v. State of Tamil Nadu (2013) 16 SCC 31, the Supreme Court held with a 2:1 majority that statements recorded under Section 67 of the NDPS Act, cannot be treated as a confessional statement which facilitates the conviction of an accused person.

Section 67 of the NDPS Act, 1985 provides for the officer’s power to call for information.

Power to call for information, etc. - Any officer referred to in Section 42 who is authorized on this behalf by the Central Government or a State Government may, during any inquiry in connection with the contravention of any provisions of this Act,

(a) call for information from any person to satisfy 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 inquiry;

(c) examine any person acquainted with the facts and circumstances of the case.

Section 25 of the Indian Evidence Act, 1872 provides that no confession made to a police officer can be used as evidence against the accused.

Confession to police officer not to be proved. —No confession made to a police officer1, shall be proved as against a person accused of any offense.

This landmark judgment overruled the case, Raj Kumar Karwal v. UOI (1990) 2 SCC 409, which held that officers under Section 53 of the NDPS Act are not to be considered ‘police officers’ and are not to be given the same powers awarded to them under Chapter XII of the Code of Criminal Procedure, 1973.

The Supreme Court in the Tofan Singh Case opined that using confessional statements made to investigating officers by persons accused in drug abuse and trafficking cases under the NDPS Act, cannot be used to convict a person as this would be an infringement of fundamental rights warded by the Indian Constitution to every person.

This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, Or Religion Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A) And Other Related Laws Being Force In India, For The Time Being.