NDPS bail and inadmissible customs confession led to conditional release where exclusive possession was not prima facie shown

In an NDPS bail matter involving alleged ketamine hydrochloride, the Court noted that the substance was not clearly shown to fall within the relevant NDPS schedules, and the Customs Officer-recorded confession was not relied on at the bail stage because a confession to a Customs Officer is barred under Section 25 of the Evidence Act. The seizure material also did not prima facie establish exclusive possession of the contraband by the petitioner, as access and custody of the baggage were not satisfactorily shown. In the absence of clear prima facie material on possession and involvement, bail was granted on conditions.

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Issues: Whether the petitioner was entitled to bail in an NDPS prosecution where the seized substance was alleged to be ketamine hydrochloride, the confessional statement before the Customs Officer was relied upon, and the prosecution asserted prima facie possession and the bar under the NDPS law.

Analysis: The seized substance was not shown to be specifically included in Schedule I, II or III of the NDPS Rules, 1985, though it was referred to in the record as ketamine hydrochloride and also found in the Drugs and Cosmetics notification. The confessional statement recorded by the Customs Officer could not be relied upon at the bail stage, since a confession to a Customs Officer is hit by the bar under Section 25 of the Evidence Act and is not admissible. The seizure materials did not clearly show that the substance was recovered from the exclusive possession of the petitioner, as the baggage had already been checked in and the circumstances of opening and access were not satisfactorily established. In the absence of clear prima facie material showing possession and involvement, and considering that the petitioner was a woman and willing to abide by conditions, bail was considered appropriate.

Conclusion: Bail was granted to the petitioner with conditions.

Ratio Decidendi: In an NDPS bail matter, a confession to a Customs Officer cannot be relied upon at the preliminary stage, and where exclusive possession of the contraband is not prima facie established, bail may be granted on suitable conditions.

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