The Authors of this blog are Ms. Prachi Agarwal & Mr. Mohit Chauhan, Advocate, Jharkhand High Court. 



The Narcotic Drugs and Psychotropic Substances Act, 1985 was enacted to consolidate and amend the law relating to narcotic drugs. Till date to achieve the objective and purpose of the Act various amendments have taken place, however one of the most controversial topic involved in NDPS is yet to be decided i.e. whether the confession made u/s 67 of the NDPS Act is admissible or not?

This article deals with two issues i.e. evidentiary value of the confession given to the officer authorized to investigate the offence under the Act and whether the officer appointed u/s 53 of the Act would be deemed as a police officer for the purpose of Section 25 of the Indian Evidence Act, 1872.

The plain reading of section 42 of the NDPS Act implicates that the officer u/s 42 of the Act is only empowered to enter and search the place and if any contraband is found then to seize that article and arrest the alleged accused person. Now, after the search and seizure as per Section 52(3) of the NDPS Act the officer empowered u/s 42 has to without any delay forward the arrested person and seized article to the officer-in-charge of nearest police station or to the officer empowered u/s 53 of the Act. This leads to one conclusion that the officer appointed u/s 42 of the Act is not authorized to record the confession, if any, confession is to be recorded it will be recorded either by the officer conducting investigation or by officer appointed by Central or State Government u/s 53 of the Act.

Also, the use of word “enquiry” rather than investigation in section 67 implies that word “any person” used in section 67 does not include accused person as before the proceeding u/s 42the person can never be in custody.

Now, after it is established that the officer u/s 42 is different from the officer empowered to conduct investigation. The next question which arises is whether the confession recorded under NDPS Act is admissible or whether it is hit by section 25 of the Indian Evidence Act, thereby making it inadmissible? If the confession is made before the officer-in-charge of police station, then as per section 25 of the Indian Evidence Act it need not be proved against the person accused of any offence. This leads to another question, whether the officer u/s 53 of the Act is police officer or not?

In Kanhaiyalal v Union of India[1], Hon’ble Apex Court held that confession before officer of NCB is admissible and the officer is not a police officer. In 2013, Tofan Singh v State of Tamil Nadu[2] the view taken in the Kanhaiyalal’s Case was referred to larger bench mentioning that a re-look is required into the case of Kanhaiyalal so that further confusion and conflicts can be avoided. The question of law referred by bench of A.K. Patnaik and A.K. Sikri to Supreme Court was as follows;

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

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

The Court while reference stated:“We have also to keep in mind the crucial test to determine whether an officer is a police officer for the purpose of Section 25 of the Evidence Act viz. the “influence or authority” that an officer is capable of exercising over a person from whom a confession is obtained. The term “police officer” has not been defined under the Code or in the Evidence Act and, therefore, the meaning ought to assessed not by equating the powers of the officer sought to be equated with a police officer but from the power he possesses from the perception of the common public to assess his capacity to influence, pressure or coercion on persons who are searched, detained or arrested. The influence exercised has to be, assessed from the consequences that a person is likely to suffer in view of the provisions of the Act under which he is being booked. It, therefore, follows that a police officer is one who:-

(i) is considered to be a police officer in “common parlance” keeping into focus the consequences provided under the Act.

(ii) is capable of exercising influence or authority over a person from whom a confession is obtained.”

"It has been 7 years, since the case of Toofan Singh has been referred to larger bench for decision, it was fixed for hearing on 18th August, 2020, however it is still pending and the Courts have not yet clarified the air by settling the conflicted position of confession under the NDPS Act, 1985."[3].

Apex Court in Mohtesham Mohd. Ismail v Spl. Director, Enforcement Directorate[4] held – We may, however, notice that recently in Francis Stanly v Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram[5], this Court has emphasized that confession only if found to be voluntary and free from pressure, can be accepted. A confession purported to have been made before an authority would require a closer scrutiny. It is furthermore now well settled that the Court must seek corroboration of the purported confession from independent sources”

In Noor Aga v State of Punjab & Anr.[6] Hon’ble Apex Court held: -102. Section 25 of the Evidence Act was enacted in the words of Mehmood. J. in Queen Empress v Babulal(ILR (1884) 6 ALL 509) to put a stop to the extortion of confession, by taking away from the police officers as the advantage of providing such extorted confession during the trial of accused persons. It was, therefore enacted to subserve a high purpose.”

It is true that the confession made by a co-accused shall not be the sole basis for a conviction. Apex Court in Kashmira Singh vs. The State of Madhya Pradesh[7] held that the confession of an accused person is not evidence in the ordinary sense of the term as defined in Section 3 of the Indian Evidence Act, 1872. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is, first, to marshall the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands, even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.

In the light of the judgment in Kashmira Singh’s case, even if the statement u/s 67 of the NDPS Act amounts to confession, certain requirements is to be fulfilled to rely on such confessional statement. If the alleged accused persons will be subjected to interrogations while they were in custody, it cannot be said that the statement made by them was voluntary. Authorities under the Act, even if they are not kept in position similar to that of police officers, can always show that alleged accused persons had not formally been arrested before such statements were recorded.


The real chaos which has been the reason of current conflict is that the definition of ‘Police Officer’ has not been defined in the Evidence Act or in the Criminal Procedure Code. The reason before the insertion of section 25 of the IEA was to prevent threat and coercion exercised by the police officer to extract statement from the accused person. The departmental officers who is invested with the powers of police, whether recognized as police officer or not, is always presumed to be in such a position where they can exercise dominance over the other party. The Court while weighing the evidentiary value of such a statement cannot lose sight of ground realities. Circumstances attendant to making of such statements should, in our considered opinion, be taken into consideration. It is true that even though confession made before the police under section 25 of the Indian Evidence Act,need not be proved against the maker but, in plethora of cases Hon’ble Courts have convicted the accused person on the basis of confession and other incriminating evidences. There can be no straight jacket formula. Whether a confessional statement is made voluntary and free from any pressure must be judged from the facts and circumstances of each case.

This current position of admissibility of confession statement in NDPS cases, made before NCB officers, completely defeat the purpose of Section 25 of the Indian Evidence Act. If the intention of the legislature was to divert from the principal enumerated u/s 25 of the Indian Evidence Act, then express provision must have been incorporated under the NDPS Act.

[1]Kanhaiyalal v Union of India, 2008 (4) SCC 668

[2]Tofan Singh v State of Tamil Nadu, 2013 (4) R.C.R. (Criminal) 631


[4]MohteshamMohd. Ismail v Spl. Director, Enforcement Directorate 2007 (8) SCC 254

[5]Francis Stanly v Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram 2007 AIR SCW 497

[6]Noor Aga v State of Punjab & Anr, (2008) 16 SCC 417

[7]Kashmira Singh vs. The State of Madhya Pradesh, AIR 1952 SC 159