NDPS bail and Section 37: uncorroborated disclosure, weak chat evidence, and delayed sampling can justify release on bail

Under the NDPS Act, bail can be granted despite Section 37 where the Court, on a prima facie assessment, finds reasonable grounds to believe the accused is not guilty and is unlikely to offend while on bail. The prosecution case, based mainly on a co-accused's disclosure statement and alleged WhatsApp chats, was treated as insufficient because the disclosure lacked corroboration, no recovery was made from the applicant, and the chats did not contemporaneously connect the applicant with the seizure. Delay in invoking the Section 52A sampling procedure also cast doubt on procedural regularity at the bail stage. On that material, bail was directed subject to conditions.

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Issues: (i) Whether the applicant, in a case under the Narcotic Drugs and Psychotropic Substances Act, 1985, was entitled to bail despite the embargo under Section 37; (ii) Whether the applicant's implication based primarily on the co-accused's disclosure statement and the alleged WhatsApp chats furnished sufficient prima facie material to deny bail; (iii) Whether the delayed resort to the sample-collection procedure under Section 52A affected the prosecution case at the bail stage.

Issue (i): Whether the applicant, in a case under the Narcotic Drugs and Psychotropic Substances Act, 1985, was entitled to bail despite the embargo under Section 37.

Analysis: The statutory bar under Section 37 requires the Court, at the bail stage, to be satisfied that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail. The material placed before the Court was assessed on a prima facie basis, without treating the bail proceeding as a determination of guilt.

Conclusion: The applicant satisfied the requirements for grant of bail, and the Section 37 embargo did not prevent release on bail.

Issue (ii): Whether the applicant's implication based primarily on the co-accused's disclosure statement and the alleged WhatsApp chats furnished sufficient prima facie material to deny bail.

Analysis: The case against the applicant was founded mainly on the disclosure of the co-accused. A disclosure statement under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985, without corroboration, was treated as insufficient for this purpose. The Court also noted that no recovery was made from the applicant, and that the alleged WhatsApp material related to an earlier period and did not contemporaneously connect the applicant with the recovery made from the co-accused.

Conclusion: The material relied upon by the prosecution was held insufficient to prima facie connect the applicant with the alleged offence.

Issue (iii): Whether the delayed resort to the sample-collection procedure under Section 52A affected the prosecution case at the bail stage.

Analysis: The recovery was made on 18.06.2021, but the application under Section 52A was moved much later. The Court treated this delay as a circumstance casting doubt on the procedural regularity of the sampling process, which further weakened the prosecution case for the limited purpose of bail.

Conclusion: The delayed invocation of the Section 52A procedure operated against the prosecution at the bail stage.

Final Conclusion: On the material placed before it, the Court found reasonable grounds to believe that the applicant was not guilty at this stage and was not likely to commit an offence while on bail, and therefore directed release on bail subject to conditions.

Ratio Decidendi: In prosecutions under the Narcotic Drugs and Psychotropic Substances Act, 1985, bail may be granted notwithstanding Section 37 where the Court, on a prima facie appraisal, finds insufficient corroborated material linking the to the offence and is satisfied that the twin statutory conditions are met.

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