The Tofan Singh Reference is Back

On 17.01.2019, this blog had carried a post about a case called Tofan Singh. I'm going to simply extract the introductory portion from that post below to explain just what is it about:

In 2013, a Division bench passed the judgment in Tofan Singh v. State of Tamil Nadu [(2013) 16 SCC 31], an appeal against conviction for offences under the Narcotics, Drugs and Psychotropic Substances Act 1985 [NDPS Act]. While suspending the sentence of the appellant, the bench referred the case to the Chief Justice for constituting a bench of higher strength to resolve conflicts on two legal issues:

• Is the officer recording a statement under Section 67 of the NDPS Act a "police officer" for the purposes of Section 25 of the Indian Evidence Act 1872 [IEA]?
• Can the statement recorded under Section 67 of the NDPS Act be treated as a confession, even if the officer recording it is not treated as a police officer?

The case was recently listed before a three Justices' Bench and has been heard on four occasions this month, making a judgment likely in the near future. While the hearings have escaped media attention almost entirely, it does not take away from the fact that the issues being decided are very critical for not only cases under the NDPS Act but also criminal proceedings more generally.

The wheels of justice often grind very slowly, and it so happened that my prediction about a judgment in Tofan Singh coming in / around January of 2019 proved to be quite off the mark. But, a year and a half since then, the Supreme Court has issued a notice informing us that the matter has now been kept for final arguments on 18.08.2020, and it will be heard by a bench presided over by Justice Nariman. This has led to some discussion starting on the issues involved in the case (for example, see here and here). 

While this blog had already discussed the case and the issues in the post referred to above, I thought it still might be worthwhile to revisit the topic, and this time do it over a series of posts. So, in the next post, I'll give a brief background to the facts in Tofan Singh and explain the structure of the NDPS Act to understand just what's at stake. After that, we will look at the two questions over separate posts, and then a concluding post will follow.

(As an aside, for anyone interested in a deep dive into the very fascinating question of who is a "police officer" for purposes of the Indian Evidence Act rule rendering confessions to police officers inadmissible, here's a link to a paper I'd written some time ago which might be of interest).