In a significant ruling on bail jurisprudence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), the Bombay High Court has held that arrest based solely on a co-accused's custodial statement, without recovery of contraband from the accused, is insufficient to deny bail. The judgment reinforces the principle that statements under Section 67 NDPS Act cannot be treated as confessional, aligning with the Supreme Court's precedent in Tofan Singh v. State of Tamil Nadu.
Background & Facts
The Dispute
The applicant, Jameer Bhiku Khan (Accused No. 3), sought bail in connection with Crime No. 65 of 2026, registered at Talegaon Dabhade Police Station, Pune, for offences under Sections 8(C), 21(A), and 29 of the NDPS Act. The case arose from a routine police patrol near M.S.C.B Talegaon on 01.03.2026, where Accused Nos. 1 and 2 were found in possession of 11.21 grams of Mephedrone (MD), a quantity below commercial threshold.
Key Facts
- 01.03.2026: Police patrol near M.S.C.B Talegaon; Accused Nos. 1 and 2 arrested with 11.21 grams of Mephedrone.
- 02.03.2026: Crime No. 65 registered under Sections 8(C), 21(A), and 29 NDPS Act.
- 16.03.2026: Applicant (Accused No. 3) arrested based on statement of Accused No. 1 made during police custody.
- No contraband recovered from the applicant.
- 29.05.2026: Bail Application No. 143 of 2026 dismissed by Additional Sessions Judge, Wadgaon Maval, Pune.
Procedural History
- 02.03.2026: Crime registered; Accused Nos. 1 and 2 arrested.
- 16.03.2026: Applicant arrested based on co-accused's statement.
- 29.05.2026: Bail application dismissed by trial court.
- 13.07.2026: Present bail application (Criminal Bail Application No. 2374 of 2026) filed before Bombay High Court.
The Parties' Positions
For the Applicant
- Argued that no recovery was made from the applicant.
- Contended that arrest was based solely on co-accused's statement made in police custody, which is inadmissible under Section 67 NDPS Act as per Tofan Singh.
- Emphasized that the quantity of contraband was non-commercial, reducing the rigour of Section 37 NDPS Act.
For the Respondent-State
- Conceded that no recovery was made from the applicant.
- Acknowledged that arrest was based on co-accused's custodial statement.
Relief Sought
The applicant sought bail on the grounds that:
- No contraband was recovered from him.
- Arrest was based on inadmissible evidence under Section 67 NDPS Act.
- The quantity involved was non-commercial, warranting leniency.
The Legal Issue
The central question was whether arrest and continued detention of an accused under the NDPS Act can be justified solely on the basis of a co-accused's statement made during police custody, in the absence of any recovery of contraband from the accused.
Arguments Presented
For the Applicant
- Relied on Tofan Singh v. State of Tamil Nadu to argue that statements under Section 67 NDPS Act cannot be treated as confessional and are inadmissible as sole evidence for arrest.
- Contended that Section 37 NDPS Act, which imposes stringent conditions for bail, does not apply to non-commercial quantities.
- Argued that absence of recovery from the applicant weakened the prosecution's case.
For the Respondent-State
- Did not contest the applicant's arguments regarding lack of recovery or the inadmissibility of the co-accused's statement.
- Implicitly acknowledged the legal infirmity in the applicant's arrest.
The Court's Analysis
The Court conducted a two-pronged analysis of the legal principles governing bail under the NDPS Act:
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Admissibility of Custodial Statements: The Court relied on the Supreme Court's judgment in Tofan Singh v. State of Tamil Nadu, which held that statements recorded under Section 67 NDPS Act cannot be treated as confessional. The Court observed:
"A statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act."
This precedent was directly applicable, as the applicant's arrest was based solely on the co-accused's custodial statement, which the Court deemed legally insufficient to justify detention.
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Non-Commercial Quantity and Section 37 NDPS Act: The Court noted that the contraband involved (11.21 grams of Mephedrone) was below commercial quantity, which meant the rigours of Section 37 NDPS Act - which imposes strict conditions for bail - did not apply. This distinction was critical, as it lowered the threshold for granting bail.
The Court further emphasized that no contraband was recovered from the applicant, which severely weakened the prosecution's case. The combination of inadmissible evidence and absence of recovery led the Court to conclude that continued detention was unwarranted.
The Verdict
The Bombay High Court allowed the bail application and directed the applicant's release on the following conditions:
- Execution of a Personal Recognizance (P.R.) Bond in the sum of Rs. 50,000 with one or two local sureties of the like amount.
- Non-interference with prosecution evidence: The applicant was prohibited from inducing, threatening, or promising any person acquainted with the facts to dissuade them from disclosing information.
- Attendance before Investigating Officer: The applicant must report to the Talegaon Dabhade Police Station on the 2nd Saturday of each month from 11:00 a.m. to 1:00 p.m. until the conclusion of the trial.
- Cooperation in trial: The applicant must attend all hearings of Special Case No. 48 of 2026 unless exempted.
- Prohibition on similar offences: The applicant must refrain from indulging in similar offences.
What This Means For Similar Cases
Custodial Statements Under Section 67 NDPS Act Are Not Confessional
- Practitioners must challenge arrests based solely on co-accused's custodial statements under Section 67 NDPS Act, as these are inadmissible as confessional evidence per Tofan Singh.
- Prosecution cannot rely on such statements to justify detention or oppose bail, especially when no contraband is recovered from the accused.
Non-Commercial Quantities Attract Lenient Bail Conditions
- Section 37 NDPS Act's stringent bail conditions do not apply to non-commercial quantities of contraband.
- Courts are more inclined to grant bail in such cases, provided there is no direct recovery from the accused.
Arrest Without Recovery Is Legally Infirm
- Arrests under NDPS Act must be supported by direct evidence, such as recovery of contraband from the accused.
- Absence of recovery significantly weakens the prosecution's case and strengthens bail pleas.
- Practitioners should scrutinize the grounds of arrest and challenge detentions based on circumstantial or inadmissible evidence.
