The High Court of Himachal Pradesh has delivered a significant clarification on the evidentiary threshold for granting bail in NDPS cases, emphasizing that uncorroborated confessions of co-accused and mere call detail records cannot sustain a prima facie case against a non-recovered accused. This ruling reinforces the principle that liberty must not be denied on speculative or legally inadmissible evidence.
Background & Facts
The Dispute
The petitioner, Chaman Lal, was named in FIR No. 89 of 2025 for offences under Sections 20 and 29 of the NDPS Act, 1985, based solely on the statements of two co-accused - Kishori Lal and Vinay Kumar - who were apprehended with 2.84 kilograms of charas. No recovery was made from the petitioner, nor was any contraband found at his residence. The prosecution’s case hinges entirely on the disclosure statement of the co-accused and call detail records linking the petitioner to them.
Procedural History
- 9 July 2025: FIR registered at Police Station, Jawali, Kangra
- 11 July 2025: Petitioner taken into custody
- 29 November 2025: Charge sheet filed before the Trial Court
- January 2026: Petition for regular bail filed before the High Court
Relief Sought
The petitioner sought release on bail, arguing that the evidence against him was legally inadmissible and insufficient to meet the twin conditions under Section 37 of the NDPS Act. He submitted that he had been acquitted in three of ten prior FIRs and would comply with all bail conditions.
The Legal Issue
The central question was whether Section 37 of the NDPS Act permits denial of bail solely on the basis of an inadmissible confession by a co-accused and uncorroborated call detail records, in the absence of any recovery or direct evidence linking the accused to the offence.
Arguments Presented
For the Petitioner
The petitioner’s counsel relied on Tofan Singh v. State of Tamil Nadu and Dipakbhai Jagdishchandra Patel v. State of Gujarat to argue that confessions made to police officers are inadmissible under Section 25 of the Indian Evidence Act and cannot be used as substantive evidence. He further cited Saina Devi v. State of Himachal Pradesh to contend that call detail records alone, without independent corroboration, cannot establish a prima facie case. He emphasized that the petitioner had no prior conviction for NDPS offences and would abide by bail conditions.
For the Respondent/State
The Additional Advocate General contended that the petitioner had abetted the possession of a commercial quantity of charas and that the co-accused’s disclosure, coupled with call records, established a prima facie case. He argued that Section 37 of the NDPS Act imposes a stringent standard for bail and that the gravity of the offence warranted continued custody.
The Court's Analysis
The Court undertook a rigorous analysis of the evidentiary value of co-accused statements and call records under the NDPS regime. It held that the disclosure statement made by Kishori Lal under Section 67 of the NDPS Act could not be used against the petitioner because it was made to a police officer and thus barred under Section 25 of the Indian Evidence Act. The Court reiterated the Supreme Court’s holding in Dipakbhai Jagdishchandra Patel that such statements are inadmissible under Section 162 CrPC and cannot form the basis of a prima facie case.
"A confession that is made to a police officer would be inadmissible, having regard to Section 25 of the Evidence Act."
The Court further observed that call detail records, while circumstantial, are not sufficient to establish participation in a crime without corroborative evidence such as recovery, witness testimony, or financial trail. It relied on its own precedent in Saina Devi v. State of Himachal Pradesh, which held that “the existence of CDR details has not been considered as a circumstance sufficient to hold a prima facie case.”
The Court emphasized that bail cannot be denied merely on the basis of allegations unsupported by admissible evidence. It noted that the prosecution had failed to produce any material connecting the petitioner to the actual possession or distribution of charas. The Court also referenced Brijmani Devi v. Pappu Kumar to underscore that bail orders must be reasoned and grounded in the factual matrix, not mechanical.
The Court concluded that the prosecution had not established a prima facie case against the petitioner under Section 37 of the NDPS Act, and therefore, the conditions for denial of bail were not satisfied.
The Verdict
The petitioner won. The Court held that co-accused confessions and call detail records, without independent corroboration, are legally insufficient to establish a prima facie case under Section 37 of the NDPS Act. The petitioner was granted bail subject to specified conditions, including surrender of passport, compliance with summons via digital means, and non-interference with witnesses.
What This Means For Similar Cases
Confessions to Police Are Not Evidence Against Co-Accused
- Practitioners must challenge the use of co-accused disclosures in bail hearings under NDPS, citing Tofan Singh and Dipakbhai Patel
- Any bail order relying on such statements without corroboration is vulnerable to challenge
- Defence counsel should file applications to exclude such statements as inadmissible under Section 25 of the Indian Evidence Act
Call Records Alone Are Insufficient for Prima Facie Case
- CDRs may be used as circumstantial evidence but cannot be the sole basis for denying bail
- Prosecution must adduce independent evidence - recovery, witness testimony, financial links - to establish active participation
- Courts must reject mechanical bail denials based on CDRs alone, as per Saina Devi and this judgment
Bail Under NDPS Requires Reasoned Application of Mind
- Courts must articulate specific reasons for denying bail under Section 37, not rely on the gravity of the offence alone
- The burden to show prima facie guilt lies with the prosecution; the accused need not prove innocence
- This judgment reinforces that liberty is the norm, custody the exception, even in serious drug cases
