Two men caught with 4 kg heroin. One walked free. Why?

Two men, one car, 4 kg of heroin. One walked free, the other didn't. The difference? A confession that the Supreme Court just made useless.

On the night of December 11, 2005, NCB officers laid a trap near a bus stand in Chandigarh. A white Indica car stopped. Two men jumped out and ran. The third, Satnam Singh, stayed behind. Inside the car, hidden in cavities, officers found four packets of heroin — 4 kg of the drug, a commercial quantity that carries severe punishment under the Narcotic Drugs and Psychotropic Substances Act, 1985.

Satnam Singh, caught at the scene, named the man who had fled: Balwinder Singh. The NCB arrested Balwinder Singh later from jail, where he was already lodged in another NDPS case. Both men were convicted by the Special Court. Balwinder Singh, as a repeat offender, received the death penalty. Satnam Singh got 12 years. The High Court commuted Balwinder's death sentence to 14 years of rigorous imprisonment.

Then the Supreme Court stepped in. Everything changed for one of them.

When the confession became useless

The key question before the Supreme Court was simple but devastating for the prosecution: could a statement recorded under Section 67 of the NDPS Act (the power to call for information) be used as a confession to convict an accused person?

For years, the answer had been yes. NCB officers would record statements from accused persons, and courts treated those statements as confessions — powerful evidence that could alone secure a conviction. But in 2021, a landmark judgment changed everything.

In Tofan Singh v. State of Tamil Nadu, the Supreme Court held that officers of the NCB and other central agencies, when invested with powers under Section 53 of the NDPS Act (powers of a police officer), are essentially police officers for the purpose of recording confessions. And under Section 25 of the Indian Evidence Act, 1872 (a confession to a police officer cannot be proved against the accused), any confession made to such an officer is inadmissible in court.

This ruling struck at the heart of how drug cases were prosecuted in India. Thousands of convictions rested on these statements. The Supreme Court in Tofan Singh said those convictions could no longer stand — unless there was other independent evidence to support them.

Two men, two different fates

When the Supreme Court applied the Tofan Singh ruling to Balwinder Singh and Satnam Singh, the result was starkly different for each man.

For Balwinder Singh, the only evidence linking him to the 4 kg of heroin was his confessional statement recorded under Section 67 of the NDPS Act. He had fled the car. He was not present at the recovery. No witness identified him at the scene. No physical evidence connected him to the drugs. Once his confession became inadmissible, the prosecution had nothing left.

The Supreme Court acquitted Balwinder Singh. He walked free.

For Satnam Singh, the story was different. He was caught in the car. Independent witnesses — PW-1, PW-3, and PW-5 — testified against him. The drugs were physically recovered from the vehicle he was in. The chemical examiner's report confirmed the substance was heroin. The prosecution proved beyond reasonable doubt that Satnam Singh was in conscious possession of the contraband.

Even after excluding his Section 67 statement, the independent evidence was enough. The Supreme Court upheld Satnam Singh's conviction and 12-year sentence.

Why the presumption didn't save the prosecution

The NDPS Act contains powerful presumptions that usually help the prosecution. Section 35 (presumption of culpable mental state) and Section 54 (presumption from possession of illicit articles) shift the burden to the accused once the prosecution proves foundational facts.

But here's the catch: the prosecution must first prove those foundational facts beyond reasonable doubt. For Balwinder Singh, the prosecution couldn't prove that he possessed the heroin — not even that he was in the car when the drugs were found. The only evidence was the now-inadmissible confession. Without that, the presumptions never kicked in.

For Satnam Singh, the foundational facts were proven: he was in the car, the drugs were in the car, and witnesses placed him there. The presumptions operated against him, and he could not rebut them.

What the court's reasoning means for every NDPS case

The Supreme Court's judgment in Balwinder Singh (Binda) v. The Narcotics Control Bureau is a direct application of the Tofan Singh principle. The ratio (the court's central reasoning) is clear:

• Statements recorded under Section 67 of the NDPS Act by officers invested with powers under Section 53 are barred by Section 25 of the Evidence Act. They cannot be used as confessional statements for conviction.
• Where the only evidence connecting an accused to the offence is such a confessional statement, and no independent incriminating evidence exists, the conviction cannot be sustained.
• But where independent evidence — witness testimony, physical recovery from the accused's vehicle or person, chemical analysis — proves foundational facts beyond reasonable doubt, the conviction can survive even after excluding the Section 67 statement.
• The prosecution must first prove foundational facts (possession of contraband) beyond reasonable doubt. Only then do the presumptions under Sections 35 and 54 of the NDPS Act operate, shifting the burden to the accused.

THE PLAY: If your client's only link to a drug seizure is a Section 67 statement, move for acquittal under Tofan Singh — but if independent evidence of possession exists, prepare to rebut the statutory presumptions on preponderance of probability.

The Supreme Court's order was delivered on September 18, 2023, by a bench led by Justice Hima Kohli. Balwinder Singh was acquitted. Satnam Singh's conviction was upheld. Two men, one car, 4 kg of heroin. One walked free. The other didn't. The difference was not the drugs. It was the evidence that survived the death of a confession.