Retracted Section 67 statement cannot alone defeat bail under NDPS when no recovery or incriminating link is shown.
A retracted statement recorded under Section 67 of the NDPS Act, standing alone and unsupported by recovery or other incriminating material, could not be treated as substantive confessional material against the accused at the bail stage, especially in light of the majority view in Tofan Singh. The Delhi HC also found that the statutory restrictions under Section 37 were satisfied on the record because no recovery was made from the accused, no call-detail or similar linkage with the principal accused was shown, and there was no material indicating a likelihood of reoffending. Bail was therefore granted without any finding on the merits.
Issues: (i) Whether a statement recorded under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 could be treated as a confessional statement against the accused for deciding bail; (ii) Whether the accused satisfied the conditions for grant of bail in view of the restrictions under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
Issue (i): Whether a statement recorded under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 could be treated as a confessional statement against the accused for deciding bail.
Analysis: The only material connecting the accused to the alleged offence was the statement recorded under Section 67, which had been retracted. In the light of the majority view in Tofan Singh, such a statement cannot be used as a confessional statement in the trial of an offence under the Act. No recovery was made from the accused and no other material of comparable strength was shown to establish his involvement at the bail stage.
Conclusion: The Section 67 statement could not, by itself, be treated as substantive confessional material against the accused at this stage.
Issue (ii): Whether the accused satisfied the conditions for grant of bail in view of the restrictions under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
Analysis: Although the prosecution relied on the statutory embargo for offences involving commercial quantity, the record showed that no recovery had been made from the accused, he was on leave when his identity documents were used, no call-detail or similar linkage with the principal accused was placed on record, and there was no material showing a likelihood of reoffending on bail. In these circumstances, the Court found that the twin requirements under Section 37 were satisfied for the purpose of bail.
Conclusion: The accused satisfied the bail requirements under Section 37 and was entitled to release on bail.
Final Conclusion: The bail petition succeeded and the accused was ordered to be released on bail without any finding on the merits of the prosecution case.
Ratio Decidendi: A retracted Section 67 statement, unsupported by recovery or other incriminating material, cannot by itself justify denial of bail, and bail may be granted where the record does not show reasonable grounds for believing that the accused is guilty and likely to reoffend.
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