Confessions of co-accused cannot constitute substantive evidence for conviction; hence, absence of solid evidence connects the accused is paramount for bail consideration under the NDPS Act.

ORDER :

BECHU KURIAN THOMAS, J.

This is an application for regular bail filed under section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

2. Petitioner is the fourth accused in Crime No.1539 of 2024 of Kodungallur Police Station registered alleging offences punishable under sections 20(b)(ii)(C), 25, and 27A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act').

3. According to the prosecution, on 28.10.2024, the first and second accused were found transporting 21.924 Kg of ganja in a car bearing registration No.KL-21-Q-3329 through the National Highway. Subsequently, during investigation, the third accused was arrayed as an accused, alleging that he had paid amounts to purchase a portion of the contraband. The petitioner was also arrayed as the fourth accused, alleging that he had provided a car to accused 1 and 2 for transporting the contraband from Odisha to Kerala and the accused together committed the offences alleged.

4. Sri.Vivek Venugopal, the learned counsel for the petitioner submitted that petitioner was arrested on 10.01.2025 without any basis and no material exists to connect him with the crime. According to the learned counsel, except for the confessional statement of a co-accused, there are no materials to connect the petitioner with the offence alleged. The learned counsel further pointed out that even the allegation that the vehicle that was used to transport the contraband belonged to the petitioner, is incorrect since the owner of the vehicle is Sri. Sakeer, who had filed Crl.M.P. No.1814 of 2025 before the Sessions Court, Thrissur and obtained release of the vehicle from the court, after finding that he was the registered owner, in exclusive possession of the vehicle and the accused had used the vehicle without his knowledge or consent. The learned counsel also submitted that considering the absence of any material to connect the petitioner with the crime and taking note of the period of detention already undergone from the date of arrest, petitioner's further detention is unnecessary.

5. Sri. K.A. Noushad, the learned Public Prosecutor on the other hand contended that the vehicle actually belongs to the petitioner as investigation has revealed that CW22, who was the registered owner of the vehicle, had sold it to CW25, who in turn sold it to CW26. Thereafter the vehicle was pledged to Hakkim, who handed over the vehicle to accused 1 and 2 for transporting the contraband. It was also submitted that the second accused had confessed that the petitioner handed over the vehicle to the said accused to travel all the way to Odisha to purchase the contraband. The learned Public Prosecutor further submitted that release of the vehicle to Sri.Sakeer on interim arrangement, is not determinative of the question and considering the quantity of contraband seized, the rigour under section 37 of the NDPS Act will apply and therefore the petitioner ought not to be released on bail.

6. On an appreciation of the contentions raised, it needs to be noted that under criminal jurisprudence, confession of a co-accused, is not a substantive evidence as held in the decision in Haricharan Kurmi and Another v. State of Bihar [AIR 1964 SC 1184] . It was held in that decision that the evidentiary value of the confessional statement of an accused against a co-accused is reflected from the provisions of S.30 of the Indian EVIDENCE ACT , 1872. The crucial expression used in S.30 is "the Court may take into consideration such confession". These words imply that the confession of a co-accused cannot be