Regular Bail Granted Under NDPS Act Solely on Co-Accused's Disclosure: Punjab and Haryana High Court 2025
Case: Ashish Vishkarma @ Sunil alias Manish v. State of Punjab; Court: Punjab and Haryana High Court; Judge: Mr. Sumeet Goel, J.; Case No.: CRM-M-29725 of 2023; Decision Date: 05.08.2025; Parties: Petitioner vs State of Punjab
The adjudication of a petition for regular bail under the stringent provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985, necessitates a delicate equipoise between the rigors of Section 37, which constrict judicial discretion, and the constitutional imperative of personal liberty under Article 21, particularly when the prosecution's edifice is constructed solely upon the disclosure statement of a co-accused, a species of evidence long recognized as inherently frail and requiring corroboration.
Facts
The petitioner sought regular bail under Section 439 of the Code of Criminal Procedure, 1973, concerning FIR No. 121 dated 19.07.2022, registered at Police Station Amloh, District Fatehgarh Sahib, for offences punishable under Sections 22-C and 29 of the NDPS Act; the gravamen of the allegation was the recovery of 200 strips of Lomotil tablets, containing 1200 intoxicant tablets in total, from a co-accused, Janak Raj, without any permit or license. The petitioner was arrested on 23.07.2022 and had remained in continuous judicial custody for over two years and nine months by the time of the bail adjudication; the challan was presented on 22.01.2024, and of the eighteen cited prosecution witnesses, only seven had been examined while four were given up. The singular and exclusive foundation for arraying the petitioner as an accused was the disclosure statement made by the co-accused, Janak Raj; no contraband was recovered from the petitioner's possession, he was not present at the spot of recovery, and the prosecution conceded the absence of any other tangible evidence connecting him to the seized narcotics. The State opposed the bail plea, invoking the serious nature of the allegations and the restrictive twin conditions of Section 37 of the NDPS Act, and further submitted a custody certificate indicating the petitioner's involvement in two other criminal cases.
Issue
Whether, in a prosecution for offences involving commercial quantities under the NDPS Act, an accused implicated solely on the basis of an uncorroborated disclosure statement made by a co-accused, and having suffered protracted incarceration as an undertrial, is entitled to the concession of regular bail, notwithstanding the apparent rigors of Section 37 of the NDPS Act.
Rule
The governing legal principles derive from a synthesis of statutory interpretation and constitutional mandate: firstly, Section 37 of the NDPS Act imposes twin cumulative conditions for bail, requiring the court to be satisfied that there are reasonable grounds for believing the accused is not guilty and that he is not likely to commit any offence while on bail. Secondly, a confession or disclosure statement made by a co-accused, particularly under Section 67 of the NDPS Act, is inherently a weak piece of evidence which cannot, without corroboration, form the sole basis for conviction, a principle affirmed by the Supreme Court in Tofan Singh v. State of Tamil Nadu. Thirdly, the rigors of Section 37 stand diluted when an accused has suffered long undertrial incarceration and the delay in trial is not attributable to him, compelling the court to balance the strictness of the anti-narcotics statute with the fundamental right to liberty under Article 21 of the Constitution. Fourthly, the involvement of an accused in other criminal cases cannot, ipso facto, be a sufficient ground to deny bail if a prima facie case for bail is otherwise made out on the merits of the specific FIR in question.
Analysis
The court's reasoning, eschewing a deep examination of evidentiary minutiae that might prejudice the pending trial, engaged in a prima facie sifting of the material to assess whether the twin conditions of Section 37 could be met; this preliminary scrutiny revealed the prosecution case against the petitioner rested exclusively on the disclosure statement of co-accused Janak Raj, a species of evidence whose infirmities are well-documented in jurisprudence. The court, invoking the precedent in Anshul Sardana v. State of Punjab, which itself relied upon the Supreme Court's holding in Tofan Singh, explicitly recognized that such statements hold limited evidentiary value and cannot be the sole basis for implication, thereby creating a serious doubt regarding the objective fairness of the investigation and, consequentially, the strength of the prosecution's case linking the petitioner to the contraband. This doubt directly informs the first condition under Section 37(1)(b)(i); for the court to form a belief that there are reasonable grounds to think the accused is not guilty, it need not undertake the scrutiny required for an acquittal, but must merely evaluate the prima facie tenability of the prosecution's foundational evidence, which in this instance was manifestly frail and uncorroborated, thus tilting the balance towards a finding that reasonable grounds existed to believe in the petitioner's lack of guilt.
The second prong of the analysis concerned the attenuation of Section 37's rigor due to prolonged incarceration; the court, drawing upon its earlier exposition in Jaswinder Singh alias Kala v. State of Punjab, propounded that the rigors of Section 37 pale into oblivion when bail is sought on account of long incarceration under Article 21, provided the trial is procrastinating and the delay is not attributable to the accused. The petitioner had been in custody for over two years and nine months, a period the court deemed substantial, and while the trial had commenced, only a fraction of the witnesses had been examined, indicating a pace that could reasonably lead to further lengthy detention; this protracted deprivation of liberty, absent any tangible evidence of the petitioner's flight risk or propensity to interfere with evidence, activated the court's constitutional duty to safeguard personal liberty, thereby diluting the otherwise strict statutory bar and permitting a more liberal consideration of the bail plea. The State's contention regarding the petitioner's involvement in two other cases was deftly addressed by reference to the Supreme Court's ruling in Maulana Mohd. Amir Rashadi v. State of U.P. and other High Court judgments, which collectively establish that such involvement, by itself, cannot be a sufficient ground to deny bail when a case for bail is otherwise made out on the specific facts and evidence of the instant FIR; the court, therefore, refused to allow this factor to outweigh the cumulative effect of the weak evidentiary foundation and the lengthy period of detention already undergone.
The final stage of the court's analysis focused on crafting conditions to satisfy the second limb of Section 37, ensuring the accused would not commit any offence while on bail; recognizing that no court can predict future conduct with certainty, the court imposed a suite of stringent, specific, and ongoing conditions designed to monitor the petitioner's behavior and secure his presence at trial. Beyond standard conditions prohibiting the misuse of liberty, tampering with evidence, and ensuring court attendance, the order innovatively mandated the petitioner to submit a monthly affidavit before the trial court attesting to his non-involvement in any offence after release, a mechanism the court derived from its own precedent in Jaswinder Singh, positing that such a condition could sufficiently satisfy the requirement of Section 37(1)(b)(ii) by creating a demonstrable and enforceable check on the petitioner's post-release conduct. This structured imposition of conditions represents a calibrated judicial exercise of discretion, tailoring the bail grant to mitigate perceived risks while upholding the liberty interest, and it provides a clear pathway for the State to seek immediate cancellation of bail upon any proven breach, thus preserving the integrity of the judicial process and the objectives of the NDPS Act even while granting relief.
Conclusion
The court allowed the petition and granted regular bail to the petitioner, ordering his release upon furnishing bail or surety bonds to the satisfaction of the concerned trial court, subject to a comprehensive set of conditions including the monthly affidavit requirement; the holding was predicated on the confluence of the weak, uncorroborated nature of the sole evidence against the petitioner—the co-accused's disclosure statement—and the significant period of over two years and nine months of undertrial incarceration, which together diluted the rigor of Section 37 of the NDPS Act and established a case for the enlargement on bail under Article 21 of the Constitution.
Strategic Defense in NDPS Bail Litigation Before the Punjab and Haryana High Court
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