The Punjab & Haryana High Court has clarified that prolonged undertrial detention in NDPS cases, coupled with reliance solely on an uncorroborated disclosure statement of a co-accused, renders continued incarceration unjustified. This judgment reinforces the constitutional imperative of personal liberty under Article 21 and redefines the threshold for denying bail under Section 37 of the NDPS Act.
Background & Facts
The Dispute
The petitioner, Gurpreet Singh @ Gerhi, is accused in FIR No. 26 dated 03.03.2025 registered at Police Station Sadar, Ferozepur, under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The prosecution alleges that 259 grams of heroin were recovered from co-accused Manpreet Singh, and the petitioner was implicated solely on the basis of a disclosure statement made by Manpreet Singh during police interrogation.
Key Facts
- The petitioner was arrested on 26.11.2025 and has remained in custody since then.
- As of 28.04.2026, the petitioner had undergone five months and two days of incarceration.
- No recovery of narcotics was made from the petitioner’s possession.
- The petitioner was not present at the scene of recovery.
- No independent evidence - such as witness testimony, phone records, financial trails, or forensic links - connects the petitioner to the contraband.
- The charge sheet against the petitioner has not been filed as of the date of the judgment.
- The petitioner is also named in another FIR, but this fact was not held sufficient to deny bail in the present case.
Procedural History
- 03.03.2025: FIR No. 26 registered at PS Sadar, Ferozepur, under Sections 21 and 29 of the NDPS Act.
- 26.11.2025: Petitioner arrested and taken into custody.
- 28.04.2026: Custody certificate filed by the State, confirming five months and two days of incarceration.
- 29.04.2026: Present petition filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), seeking regular bail.
The Parties' Positions
For the Petitioner
- The petitioner’s involvement is based exclusively on the disclosure statement of a co-accused, which is inherently unreliable under Section 67 of the NDPS Act.
- No material evidence links him to the contraband.
- He has been in custody for over five months without a charge sheet being filed.
- His continued detention violates the principles of Article 21 of the Constitution.
- The investigation lacks objectivity and is potentially abusive.
For the Respondent
- The offence involves a commercial quantity of heroin (259 grams), making it a serious violation of the NDPS Act.
- The gravity of the offence justifies denial of bail under Section 37 of the NDPS Act.
- The custody certificate confirms the petitioner’s involvement in another case, indicating a pattern of criminal conduct.
Relief Sought
The petitioner sought regular bail on the grounds of prolonged undertrial detention, absence of corroborative evidence, and violation of his right to liberty under Article 21.
The Legal Issue
Can a court deny regular bail under Section 37 of the NDPS Act when the sole basis for implicating the accused is an uncorroborated disclosure statement of a co-accused, and the accused has been in custody for over five months without a charge sheet being filed?
Arguments Presented
For the Petitioner
The petitioner’s counsel relied on Tofan Singh v. State of Tamil Nadu, Smt. Najmunisha v. State of Gujarat, and Vijay Singh v. State of Haryana to argue that disclosure statements under Section 67 of the NDPS Act are inherently weak and cannot form the sole basis for prosecution. He emphasized that the petitioner’s prolonged detention without a charge sheet, coupled with the absence of any tangible evidence linking him to the contraband, renders continued custody arbitrary and violative of Article 21. He further cited Maulana Mohd. Amir Rashadi v. State of U.P. and Sridhar Das v. State to support the proposition that undertrial detention cannot be prolonged merely due to the seriousness of the offence.
For the Respondent
The State contended that the quantity of heroin (259 grams) constitutes a commercial quantity under Section 29 of the NDPS Act, triggering the stringent conditions of Section 37. It argued that the gravity of the offence and the petitioner’s involvement in another case warranted denial of bail. The State relied on the custody certificate to assert that the petitioner’s continued detention was necessary to prevent interference with the investigation.
The Court's Analysis
The Court undertook a detailed examination of the evidentiary foundation of the case and the application of Section 37 of the NDPS Act. It observed that the petitioner’s implication arises exclusively from the disclosure statement of Manpreet Singh, with no recovery, witness, or forensic evidence connecting him to the contraband. The Court noted that such statements, even if admissible under Section 67, are inherently unreliable and require corroboration.
"It is a well established principle of law that a confession made by a co-accused under Section 67 of the NDPS Act is inherently a very weak piece of evidence. Such statement(s), by themselves, cannot form the sole basis for the conviction of an individual and must be scrutinized with utmost caution in conjunction with other substantive evidence."
The Court further held that while Section 37 imposes stringent conditions for bail in NDPS cases, these conditions are not absolute and must yield to the constitutional guarantee of personal liberty under Article 21 when undertrial detention becomes unduly prolonged. The Court cited its own judgment in Anshul Sardana v. State of Punjab and Jaswinder Singh v. State of Punjab to establish that the twin conditions under Section 37(1)(b) must be assessed with judicial discretion, not mechanical rigidity.
The Court emphasized that the bail stage is not a trial, and the court need not be convinced of the accused’s innocence, but must assess whether there are reasonable grounds to believe the accused is not guilty and is unlikely to commit further offences. In this case, the absence of any material evidence linking the petitioner to the offence, combined with five months of incarceration without a charge sheet, satisfied the threshold under Section 37(1)(b)(i).
The Court also rejected the State’s reliance on the petitioner’s involvement in another case as a ground for denial, holding that such involvement cannot ipso facto establish a propensity to re-offend.
The Verdict
The petition was allowed. The petitioner is ordered to be released on regular bail upon furnishing bail bonds to the satisfaction of the concerned trial court or duty magistrate. The petitioner shall remain bound by the following conditions: (i) not misuse liberty; (ii) not tamper with evidence; (iii) not absent from trial dates; (iv) not commit any offence while on bail; (v) deposit passport if any; (vi) provide and not change cellphone number without court permission; (vii) not delay the trial; and (viii) submit a monthly affidavit before the trial court confirming no new offence has been committed. In case of breach, the State may move for cancellation of bail. The Court explicitly stated that nothing in the order constitutes an opinion on the merits of the case.
What This Means For Similar Cases
Undertrial Custody Beyond Five Months Triggers Article 21 Protections
- Practitioners must argue that prolonged undertrial detention without a charge sheet - especially beyond five months - creates a prima facie violation of Article 21, irrespective of the offence’s gravity.
- Courts are now bound to balance Section 37’s rigours with the constitutional right to liberty when custody exceeds six months.
- Delay in filing charge sheets by the prosecution cannot be used to justify continued detention.
Disclosure Statements Alone Cannot Justify Bail Denial
- A disclosure statement under Section 67 of the NDPS Act, without corroboration, cannot be the sole basis for denying bail.
- Courts must conduct a prima facie assessment of the evidentiary link between the accused and the offence at the bail stage.
- If no recovery, witness, or forensic evidence exists, bail must be granted unless the State demonstrates a clear risk of re-offending or tampering.
Bail Conditions Must Be Tailored, Not Standardized
- The Court’s imposition of monthly affidavits and cellphone disclosure sets a new precedent for tailored bail conditions in NDPS cases.
- Such conditions are permissible under Section 37(1)(b)(ii) and serve as a substitute for blanket denial of bail.
- Practitioners should propose specific, enforceable conditions rather than rely on generic assurances.
