Judgements on Bail (Uploaded on 29.10.2022)

1. A Confessional Statement record U/S 67 of the NDPS Act has been held to be inadmissible in trial of an offence under the NDPS Act- Supreme Court.

A Confessional Statement record U/S 67 of the NDPS Act has been held to be inadmissible in trial of an offence under the NDPS Act. While framing the reference, the Division Bench in Toofan Singh noted that section 67 of the NDPS Act was qualitatively different from similar provisions of other statutes like section 108 of the Customs Act or Section 14 of the Excise Act. If placed reliance on the Andhra Pradesh HC decision in Shahid Khan to back this contention. When the matter came up before the 3 Judge Bench the appellant argued that the power U/S 67 is merely to examine a person acquainted with the facts of a case unlike section 161-164 of the Cr.P.C. statements U/S 67 are not recorded on oath, nor is the person giving such statement warned about its consequences. Therefore, it was submitted that such statements must not be considered as substantive evidence.

Unimpressed with these arguments, Justice Banerjee held that section 53A is clear is stating that such statements can be considered as evidence. However, these arguments found favor with the majority, who opined that the power U/S 67 cannot be extended to recording a confessional statement. It differentiated between “Inquiry” and “Enquiry” to conclude that section 67 only empowers officers to record statements for deciding whether there exists reason to believe that an offence has been committed.

The SC also noted that the NDPS Act does not have a non-obstante clause which allows it to circumvent the provisions under the Evidence Acts, or the Cr.P.C., like is the case with POTA or TADA. It recognized that the more stringent a statute, greater is the need for procedural protections. Thus, it held that allowing information given to officers to be considered as a confession would violate an individual’s privacy as well as their right against self-incrimination enshrined in the constitution. In my opinion, given the relative absence of safeguards under Section 67 to ensure reliability and voluntariness of the statement, this is a much-needed and welcome interpretation. 

Toofan Singh vs. State of Tamil Nadu ((2021) Vol.IV SCC 1) 

2. Mere contact/communication with the co-accused without any substantive evidence is baseless-High Court of Gujarat

The Hon’ble Court observed that mere contact with the co-accused without any substantive evidence is baseless in the 5th para of the instant case-

5. having heard learned advocates of the appearing parties it emerge on record that the applicant is not found in possession of any contraband article. over and above that, the call data records may reveal that in and around the time of incident, he was in contact with the co-accused who were found in possession of contraband. since there is no recording of conversation in between the accused, mere contact with the co-accused who were found in possession cannot be treated to be a corroborative material in absence of substantive material found against the accused. however, in short of one of the whatsapp chat in between the co-accused shown to the court, there is hardly anything which connects the applicant with the present offense or even asserting that he ordered for the same which were to be delivered by the accused found in possession of contraband. in absence of any other material, which is still to be retrieved from the devices of the mobile phone and information thereon which is still awaited as considered by the Supreme Court in the case of Bharat Chaudhary (Supra) said material cannot be considered to be a sufficient material to establish any live link with the co-accused who were found in the possession of contraband. 

Yash jayeshbhai champaklal shah v state of Gujarat 2022

3. Accused Cannot be detained merely on the Statement made by Co-accused—Supreme Court

The Honble Supreme Court at Part No.11 and 12 while referring to the ruling in Tofan Singh case gave the opinion that mere reliance on the statement made by other accused person is to tenuous to detain an accused in custody and accordingly  ,released the accused on bail.

In paras 11 and 12 the Supreme Court  opined -11. “ In the absence of any psychotropic substance found in the conscious possession of A-4, we are of the opinion that mere reliance on the statement made by A- 1 to A-3 under section 67 of the NDPS Act is too tennous a ground to sustain the impugned  order dated 15th july, 2021. This is all the more so when such a reliance runs contrary to the ruling in Tofan Singh (supra). The impugned order qua A-4 is, accordingly,quashed and set aside the order dated 2nd November,2020 passed by the learned petition for special Leave of Appeal (criminal ) No.5703 oF 2021 Special judge, EC & NDPS cases, is restored. As for Raja Chandrasekharan [A-1], since the chargesheet has already been filed and by now the said accused has remained in custody for over a period of two years, it is deemed appropriate to release him on bail, subject to the satisfaction of the trial Court

12. Before parting with the cases, it is clarified that the prima facie observations made herein above are limited to considering the relief of regular bail prayed for by the petitioners and nothing expressed herein above shall be treated as an observation on the merits of the case, i.e. CC No. 0000037/2020, pending trail. The petitions for special leave to appeal are disposed of in the above term.

Bharat Chowdhury versus Union of India (2021)   

4. Interim Bail may be granted even after bypassing the rigour of Section 37 of NDPS Act- High Court  of Delhi

The Ld. Court opined that incase of extreme situations interim Bail may be considered even in NDPS Case bypassing the restrictions laid down in Section 37 of NDPS Act.

Para- 20– [1]The trial or the appellant court after conviction are entitled to grant “interim” bail to the accused/convict when exceptional and extra-ordinary circumstances would justify this indulgence. The power is to be sparingly used, when intolerable grief and suffering in the given facts may justified temporary release. 

[2] while rejecting or excepting any application for grant of “interim” bail, the trial/appellant courts will take in mind the strict provision of section 37/ 32A of the NDPS act and only when there are compelling reasons which would justify and require the grant of “interim”  bail, should the application be allowed. The court must take into account whether or not the accused/convict is likely to commit or indulge in similar violations.

[3]While examining the question of grant of “interim” bail, the court would consider whether sending accused/convict in police custody would be suffice and meets the ends of justice, keeping in view the nature of the offense with which the accused is charged or/and the past conduct of the accused.

[4]Where “interim” bail should be given, it would be granted for minimal time deservedly necessary and can be subject to certain conditions. Interim bail is interim or for a short duration. 

Arthar Pervez Vs State on 26 February,2016.