Co-accused's Confession Sans S.27 Evidence Act Discovery Not an Absolute Bar to Bail Under S.37 NDPS Act: High Court - 2024-07-05

Co-Accused's Confession Without Discovery Under S.27 Evidence Act Not Fatal to Bail in NDPS Case, Says High Court

Jhalawad: In a significant ruling on bail jurisprudence under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, the High Court, presided over by Justice Farjand Ali , has granted bail to accused-petitioners who were implicated solely on the basis of a co-accused's confessional statement made in police custody, without any subsequent discovery of facts as mandated by Section 27 of the Indian Evidence Act. The court held that such "illusory knowledge" alone might not be sufficient to attract the stringent bail conditions under Section 37 of the NDPS Act.

The order was passed on a third set of bail applications filed by the petitioners in connection with FIR No. 166/2021, registered at Police Station Dug, District Jhalawad, for offences under Sections 8/15 and 29 of the NDPS Act. The petitioners' previous two bail applications had been rejected by the court.

Case Background

The prosecution's case originated on September 3, 2021, when police during a checkpoint ( nakabandi ) attempted to intercept two motorcycles. While three individuals managed to escape, one person, Elkar Singh , was apprehended. During interrogation, Elkar Singh allegedly disclosed the names of the present petitioners ( Bane Singh , Dheerap Singh , and Pep Singh were named as accomplices) as his associates in the alleged narcotics offence. The petitioners were subsequently arrayed as accused based on this confessional statement.

Arguments Presented

The counsel for the accused-petitioners argued that: * No case was made out against them, and their continued incarceration was unwarranted. * They were implicated based on a co-accused's confessional statement during police custody, which is inadmissible under Sections 25 and 26 of the Indian Evidence Act. * The disclosure did not fall under Section 27 of the Evidence Act as nothing new was discovered or recovered based on the information purportedly implicating the petitioners. * Consequently, the embargo under Section 37 of the NDPS Act (which imposes strict conditions for bail, especially when commercial quantities of contraband are involved) would not apply. * The trial was likely to be prolonged, and the petitioners were implicated on "conjectures and surmises."

The learned Public Prosecutor , opposing the bail, contended that: * The alleged recovered contraband was well above the demarcated commercial quantity. * Therefore, the stringent conditions for bail under Section 37 of the NDPS Act were applicable.

Court's Analysis and Reliance on Precedent

Justice Farjand Ali meticulously examined the material on record and the arguments. The court noted the prosecution's admission that the petitioners were implicated based on the confessional statement of the principal accused, Elkar Singh .

The judgment emphasized a critical aspect of evidentiary law:

"the disclosure statement of the co-accused in police custody on the basis of which the present petitioners have been made an accused in this case remains just illusory knowledge and does not become a fact proved as no fact has been discovered in consequence of the information disclosed by the co-accused, thus, it cannot be said with certainty that the accused can be roped in for commission of offence under Section 29 of the NDPS Act."

The court elaborated on Section 27 of the Indian Evidence Act, stating:

"If it is an information under Section 27 of the Evidence Act, something is required to be recovered or discovered in pursuance of the information supplied under Section 27 of the Evidence Act which distinctly relates to the commission of the crime. It is the admitted case of prosecution that in pursuance of the information furnished under Section 27 of the Evidence Act regarding the culpability of the petitioners, nothing new was disclosed, recovered or discovered."

The court found that mere confession to a police officer in custody requires corroboration or support to verify its veracity. It referred to the Supreme Court's decision in Mohd. Inayatullah v. State of Maharastra (AIR 1976 SC 483) , which held that under Section 27, "Only those components or portions which were the immediate cause of the discovery would be legal evidence and not the rest which must be excised and rejected."

The court reasoned:

"only information in the form of confession received from disclosure made by an accused cannot be taken as reliable piece of evidence in isolation until there is a discovery or a recovery or another fact to corroborate the said information and prove its veracity. Precisely, it can be said that Section 27 of Evidence Act is an exception to Sections 24, 25 and 26 of Evidence Act, however, the exception limits its admissibility only upto what is envisaged in the statute itself and not beyond that."

Decision and Implications

While acknowledging the provisions of Section 37 of the NDPS Act, the court, considering that the petitioners were implicated solely on the co-accused's statement without any resultant discovery, found it to be a "fit case for grant of bail."

The court allowed the third bail applications, ordering the release of the accused-petitioners upon each furnishing a personal bond of Rs. 50,000/- with two sureties of Rs. 25,000/- each. They are required to appear before the trial court on all hearing dates.

The court made it clear that "no final observations and comments can be made at this stage, as the same may influence the course of trial."

This ruling underscores the importance of independent corroborative evidence beyond a co-accused's confession, especially when considering bail in serious offences like those under the NDPS Act, even when commercial quantities are involved and Section 37 is invoked. It reiterates that the exceptions to the inadmissibility of custodial confessions must be strictly construed.