The Punjab and Haryana High Court granted regular bail to a petitioner implicated in an NDPS case solely through disclosure statements of co-accused, holding that such statements are inadmissible under Section 23 of the Bharatiya Sakshya Adhiniyam, 2023 and cannot justify continued pre-trial detention when co-accused have already been released on bail and trial is unlikely to conclude expeditiously.
Background & Facts
The Dispute
The petitioner, Amandeep @ Khalnayak, sought regular bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding to Section 439 CrPC) in a case arising from FIR No. 395 dated 24.08.2024 registered at Police Station Civil Lines, Sirsa, District Sirsa, Haryana. The FIR was registered under Sections 22(c), 22(b) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, Section 61 of the Prisons Act, 1894 and Section 42 of the Prisons Act, 1894.
Key Facts
- On 23.08.2024, during checking of inmate Rahul, he was allegedly found in possession of intoxicant tablets containing Buprenorphine weighing 28.81 grams
- On 26.08.2024, the petitioner was apprehended on the allegation that Rahul had to supply the aforesaid intoxicant tablets to the petitioner
- The petitioner was not named in the FIR
- No contraband was recovered from the petitioner's possession
- The petitioner's alleged involvement is founded essentially upon disclosure statements
- The alleged disclosure statement attributed to the petitioner did not culminate in any recovery or discovery of any fact
- Co-accused Kamal @ Harjinder (allegedly attributed the role of procuring and concealing the contraband) and co-accused Rahul @ Bhola (from whose possession the contraband was recovered) have already been enlarged on regular bail by this Court
- Supplementary challan has already been presented
- Investigation qua the petitioner stands concluded
- Charges are yet to be framed
- The trial is likely to consume considerable time
Procedural History
- 24.08.2024: FIR No. 395 registered at Police Station Civil Lines, Sirsa
- 23.08.2024: Recovery of Buprenorphine tablets (28.81 grams) from inmate Rahul
- 26.08.2024: Petitioner apprehended on allegation of being the intended recipient
- Date not specified: Supplementary challan presented, investigation concluded
- Date not specified: Co-accused Kamal @ Harjinder granted regular bail by High Court
- Date not specified: Co-accused Rahul @ Bhola granted regular bail by High Court
- 17.08.2026: Present bail petition (CRM-M-34752-2026) decided by High Court
The Parties' Positions
Petitioner's Position: The petitioner was not named in the FIR, no contraband recovered from his possession, he was neither present at the place of alleged recovery nor is his implication supported by any independent or corroborative material. His alleged involvement rests solely on disclosure statements which are inadmissible under Section 23 BSA, 2023. He seeks parity with co-accused Kamal and Rahul who have been granted bail. Investigation is complete, charges not framed, trial will be protracted, and continued incarceration amounts to pre-trial punishment.
Respondent's Position: The State opposed bail contending that having regard to the nature and gravity of allegations, the manner of commission of offence, and the specific role attributed to the petitioner, no case for exercise of discretion in his favour is made out at this stage.
Relief Sought
The petitioner sought grant of regular bail pending trial.
The Legal Issue
The central question was whether a petitioner implicated in an NDPS case solely through disclosure statements of co-accused - which are statutorily barred as evidence under Section 23 of the Bharatiya Sakshya Adhiniyam, 2023 - can be continued in pre-trial detention when co-accused allegedly playing more central roles have been granted bail, investigation is complete, and trial is at a nascent stage.
Arguments Presented
For the Petitioner
Learned counsel submitted that the petitioner was not named in the FIR and no contraband was recovered from his possession. He was neither present at the place of alleged recovery nor is his implication supported by any independent or corroborative material. His alleged involvement is founded essentially upon disclosure statements, which are inadmissible under Section 23 of the Bharatiya Sakshya Adhiniyam, 2023. The alleged disclosure statement did not culminate in any recovery or discovery of any fact. Counsel sought parity with co-accused Kamal @ Harjinder and Rahul @ Bhola, both of whom have been enlarged on regular bail by this Court. The supplementary challan has been presented, investigation stands concluded, charges are yet to be framed, and the trial is likely to consume considerable time. Continued incarceration would serve no useful purpose and amount to pre-trial detention for an indefinite period.
For the Respondent
Learned State counsel placed on record the custody certificate of the petitioner and vehemently opposed the prayer for grant of regular bail. It was contended that having regard to the nature and gravity of the allegations, the manner in which the alleged offence was committed, and the specific role attributed to the petitioner, no case for exercise of discretion in his favour is made out at this stage. Dismissal of the petition was prayed for.
The Court's Analysis
The Court examined the material collected during investigation and found that the prosecution case against the petitioner substantially rests upon the disclosure statement attributed to the co-accused. The admissibility and evidentiary worth of such statements are circumscribed by the statutory bar contained in Section 23 of the Bharatiya Sakshya Adhiniyam, 2023. In the absence of any cogent, independent, and legally admissible material providing substantive linkage between the petitioner and the alleged offence, the prosecution case at this interlocutory stage cannot be regarded as of such compelling nature as to justify continued incarceration.
The Court further held that the petitioner is entitled to consideration on the ground of parity, particularly when the main accused Rahul and co-accused Kamal have already been enlarged on regular bail. The trial is still at a nascent stage and, having regard to the nature of evidence likely to be adduced, is not expected to culminate in the immediate future. Continued incarceration of the petitioner for an indefinite period, despite the investigation having progressed and the trial being unlikely to conclude expeditiously, would amount to subjecting him to an impermissible form of pre-trial punishment.
The Court emphasized that the right to personal liberty guaranteed under Article 21 of the Constitution cannot be eclipsed merely by the gravity of the accusation, particularly where the petitioner's continued detention is not demonstrably necessary for the purposes of investigation or trial. Balancing the nature of the allegations against the competing considerations of personal liberty, parity, the evidentiary limitations surrounding the disclosure statement, and the likelihood of protracted trial, the Court concluded that further incarceration would not advance the cause of justice.
"The right to personal liberty guaranteed under Article 21 of the Constitution cannot be eclipsed merely by the gravity of the accusation, particularly where the petitioner's continued detention is not demonstrably necessary for the purposes of investigation or trial."
The Verdict
The petition was allowed. The petitioner was ordered to be admitted on regular bail subject to furnishing requisite bail and surety bonds to the satisfaction of the learned Chief Judicial Magistrate / Illaqa Magistrate / Duty Magistrate, and compliance with seven conditions: (i) no inducement, threat, or promise to witnesses; (ii) no tampering with evidence or influencing witnesses; (iii) not leaving territorial limits of India without trial court permission, and furnishing passport particulars; (iv) providing permanent and correspondence addresses with documentary proof, to be verified by Investigating Officer within 48 hours; (v) furnishing PAN, Aadhaar, bank account details, and declaration of immovable properties; (vi) intimating change of address or mobile number within seven days; (vii) not committing similar offence, remaining present on all hearing dates unless exempted, and not absenting without prior permission. All pending miscellaneous applications stand disposed of.
What This Means For Similar Cases
Disclosure Statements Cannot Sustain Pre-Trial Detention
The judgment reinforces that disclosure statements barred under Section 23 BSA, 2023 (corresponding to Section 25 Evidence Act) cannot form the sole basis for denying bail at the interlocutory stage. Practitioners should:
- Argue that without independent corroborative material, the prosecution case lacks substantive linkage
- Highlight that disclosure statements not culminating in recovery have negligible evidentiary value at bail stage
- Cite this precedent when the State relies solely on co-accused statements to oppose bail
Parity Principle Applies Even In NDPS Cases
The Court granted parity with co-accused who played allegedly more central roles (procurer/concealer and actual possessor). This establishes that:
- When main accused and co-accused from whose possession contraband was recovered are on bail, a petitioner with lesser alleged role cannot be detained indefinitely
- Parity is a constitutional consideration under Article 21, not merely a discretionary grace
- Lawyers must proactively bring co-accused bail orders to the court's attention
Protracted Trial Weighs Heavily In Bail Calculus
The Court explicitly factored in that charges are not yet framed and trial is unlikely to conclude expeditiously. This signals:
- Investigation completion and supplementary challan filing are strong factors favouring bail
- The "indefinite period" of pre-trial detention becomes constitutionally impermissible when trial timeline is uncertain
- Practitioners should present concrete evidence of trial backlog and expected duration
Article 21 Liberty Prevails Over Gravity Of Accusation
The judgment articulates a clear principle: gravity of accusation alone cannot eclipse Article 21 liberty where detention serves no investigative or trial purpose. This provides a doctrinal anchor for bail arguments in serious offences where evidence is weak at the interlocutory stage.
