NDPS | Disclosure Statement Of Co-Accused Made In Police Custody Not Substantive Evidence Against Others: Punjab & Haryana High Court

"Disclosure statement of a co-accused is inadmissible against another accused, as the disclosure statement is not a substantive piece of evidence against other accused" ,Punjab and Haryana High Court, in a significant ruling, held that a disclosure statement made by a co-accused while in police custody is prima facie hit by Section 23 of the Bharatiya Sakshya Adhiniyam and cannot be treated as substantive evidence against another person.

A bench of Justice Surya Partap Singh, while granting bail to a petitioner in a narcotics case, observed that where no recovery of incriminating material is effected following such a statement, it carries no evidentiary weight to justify continued incarceration.

The petitioner, Ashok Singh, was implicated in FIR No. 91 dated July 6, 2025, registered under Sections 21-C and 29 of the NDPS Act after police recovered 520 grams of heroin from one Lovepreet Singh. The petitioner’s name did not appear in the original FIR, nor was he present at the spot of recovery. His involvement was based solely on the disclosure statements of co-accused persons recorded during their police interrogation, alleging that he was the supplier of the contraband.

The primary question before the court was whether the disclosure statement of a co-accused, recorded in police custody without any subsequent recovery, could form the sole basis for denying bail under the NDPS Act. The court was also called upon to determine if the rigours of Section 37 of the NDPS Act are attracted when no contraband is recovered from the petitioner’s conscious possession.

Inadmissibility of Disclosure Statements under Bharatiya Sakshya Adhiniyam

The Court meticulously analyzed the evidentiary value of statements made to the police. It observed that the only evidence collected against the petitioner was the disclosure statement of a co-accused, which was recorded while the latter was in police custody. Justice Singh noted that since no recovery of incriminating material or discovery of fact took place pursuant to this statement, it appeared to be hit by Section 23 of the Bharatiya Sakshya Adhiniyam.

Court Cites Precedents on Co-accused Confessions

The bench relied on the Supreme Court’s ruling in Surender Kumar Khanna v. Intelligence Officer, Directorate of Revenue Intelligence, which established that a disclosure statement is not a substantive piece of evidence against other accused. The Court also referenced Tofan Singh v. State of Tamil Nadu, reiterating that confessional statements recorded under the NDPS Act cannot be admitted as evidence against others.

"The disclosure statement of an accused can be used only against the person making the same, and not against the co-accused."

Rigours of Section 37 NDPS Act Not Attracted

Regarding the stringent bail conditions under Section 37 of the NDPS Act, the Court clarified that these rigours do not apply when there is no recovery from the petitioner's possession. Since nothing was seized from Ashok Singh and he was not mentioned in the FIR, the court found no reason to believe he was guilty at this stage. It noted that the investigation was complete and no further recoveries were pending from the petitioner.

Bail is the General Rule, Incarceration is the Exception

The Court invoked the fundamental postulate of criminal jurisprudence—the presumption of innocence. Citing Dataram v. State of Uttar Pradesh, the bench emphasized that grant of bail is the rule while prison is the exception. The judges remarked that occasionally there is a necessity to introspect whether denying bail is the right thing to do based on the specific facts and circumstances of a case.

"An ultimate acquittal with continued custody would be a case of grave injustice."

Right to Speedy Trial Under Article 21

Addressing the four-month detention of the petitioner, the Court highlighted that the trial was unlikely to conclude in the near future. Referencing Tapas Kumar Palit v. State of Chhattisgarh and Balwinder Singh v. State of Punjab, the bench held that the right to a speedy trial is a part of the fair procedure enshrined under Article 21 of the Constitution. This constitutional right cannot be denied to an undertrial prisoner, especially when there is no evidence of potential tampering or flight risk.

The Court concluded that the petitioner was entitled to the concession of bail as his detention would not serve any further purpose. The petition was allowed, and the petitioner was ordered to be released on bail subject to furnishing personal and surety bonds. The Court imposed conditions prohibiting the petitioner from influencing witnesses and requiring him to seek permission before leaving the country.

The ruling reinforces the principle that suspicion, however strong, cannot replace legal evidence in NDPS cases. By granting bail, the High Court underscored that statements made in police custody without corroborative recovery cannot bypass the constitutional guarantees of personal liberty and the evidentiary safeguards provided under the Bharatiya Sakshya Adhiniyam.

Date of Decision: 30 April 2026