Section 67 NDPS statements cannot convict an accused; independent proof of conscious possession can sustain conviction.

Statements recorded under Section 67 of the NDPS Act cannot be treated as confessional evidence after Tofan Singh, because officers exercising Section 53 powers are treated as police officers for Section 25 of the Evidence Act. On that basis, Balwinder Singh's conviction could not stand once the Section 67 statements were excluded and no independent incriminating material remained. By contrast, Satnam Singh's conviction was sustained because the prosecution independently proved recovery of heroin from the car he was driving, supported by the witness account, chemical analysis, and intact sample chain, thereby establishing the foundational facts and conscious possession beyond reasonable doubt and attracting the statutory presumption under Section 35.

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Issues: (i) Whether statements recorded under Section 67 of the NDPS Act could be used as confessional statements to sustain the conviction of Balwinder Singh. (ii) Whether the prosecution proved the foundational facts and conscious possession so as to sustain Satnam Singh's conviction under the NDPS Act.

Issue (i): Whether statements recorded under Section 67 of the NDPS Act could be used as confessional statements to sustain the conviction of Balwinder Singh.

Analysis: In view of the later three-Judge Bench ruling in Tofan Singh, officers invested with powers under Section 53 of the NDPS Act are police officers for the purpose of Section 25 of the Indian Evidence Act, 1872, and statements recorded under Section 67 of the NDPS Act cannot be treated as confessional statements in a trial under the NDPS Act. Once the co-accused's statement and Balwinder Singh's own Section 67 statement were excluded, no independent incriminating evidence remained to connect him with the alleged offence.

Conclusion: The conviction of Balwinder Singh could not be sustained and he was entitled to acquittal.

Issue (ii): Whether the prosecution proved the foundational facts and conscious possession so as to sustain Satnam Singh's conviction under the NDPS Act.

Analysis: Though Satnam Singh's Section 67 statement also could not be relied upon as a confession, the prosecution case against him was supported by independent evidence, including recovery of heroin from the car being driven by him, corroboration by the independent witness, the chemical report confirming heroin, and proof that the samples remained intact. The prosecution established the foundational facts beyond reasonable doubt, whereafter the statutory presumption under Section 35 of the NDPS Act arose. The defence version was found unsubstantiated, and the challenge based on alleged irregularities and witness credibility did not create reasonable doubt.

Conclusion: The conviction and sentence of Satnam Singh were sustained.

Final Conclusion: The appeals were disposed of by granting relief only to Balwinder Singh, whose conviction was set aside, while Satnam Singh's conviction and sentence were maintained.

Ratio Decidendi: A confession recorded by an NDPS officer under Section 67 cannot be used to convict an accused, and a conviction under the NDPS Act can be sustained only when the prosecution independently proves the foundational facts of possession or conscious possession beyond reasonable doubt so as to attract the statutory presumptions.

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