Inadmissibility of Police‐Custodial Confessions and Bail Standards Under Section 37 of the NDPS Act

Introduction

The present commentary deals with the judgment delivered by the High Court of Jammu & Kashmir and Ladakh in Yugraj Singh v. Union Territory of Jammu & Kashmir & another (Bail Application No. 252/2024), pronounced on 25 March 2025. The petitioner, Mr. Yugraj Singh, sought bail in a criminal case registered under FIR No. 33/2023 for multiple offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), including Section 27‑A (financing illicit narcotics traffic) and various supply/possession offences. The principal legal issues were:

Whether custodial “confessional” statements recorded by police under Section 26 of the Indian Evidence Act, 1872 are admissible for bail denial.
Whether the statutory bail bar in Section 37 of the NDPS Act operates as an absolute prohibition or permits bail on satisfaction of prescribed conditions.
The sufficiency of call‐detail records (CDRs) and related material to establish a prima facie case of financing narcotics trafficking.

Summary of the Judgment

The High Court allowed the bail application of Yugraj Singh, subject to conditions. The court held:

Custodial statements/confessions recorded by police under Section 26 of the Evidence Act are inadmissible; Section 27 (discovery rule) did not validate petitioner’s disclosure, as no recovery followed from it.
Statements by co‐accused in police custody are similarly inadmissible for the purpose of denying bail.
The sole remaining material—CDR contacts—raised suspicion but fell short of a prima facie case to sustain charges under Section 27‑A NDPS Act.
Section 37 NDPS Act is not a complete bar to bail in commercial‐quantity or financing‐offence cases; courts must be satisfied on two counts:
1. Reasonable grounds to believe the accused is not guilty.
2. No likelihood of the accused re‐offending while on bail.
On the facts, petitioner disclaimed any previous narcotics‐related convictions and co‐accused had obtained bail on similar grounds (parity).
Accordingly, bail was granted on furnishing two solvent sureties of Rs. 1,00,000 each, personal bond, and usual conditions (no witness tampering, surrender of passport, attendance at trial, etc.).

Analysis

3.1. Precedents Cited

Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1: Held that custodial confessions by an accused or co‐accused to police are inadmissible under Section 26 Evidence Act.
Rayees Ahmad Dar v. UT of J&K (Bail App. No. 05/2022, 21 May 2022): Confirmed inadmissibility of statements made by an accused in police custody to implicate co‐accused.
Supreme Court bail jurisprudence: Enumerated factors for bail in non‐bailable offences, e.g., prima facie guilt, nature of accusation, severity of punishment, risk of absconding, witness tampering, past conduct, likelihood of repetition, etc.

3.2. Legal Reasoning

The court’s reasoning unfolded in two strands:

Admissibility of Confessions and Disclosures:
- Section 26, Evidence Act: “No confession made to a police officer is admissible against the accused.” Petitioner’s and co‐accused statements recorded by police thus fall.
- Section 27, Evidence Act: Allows factual disclosures leading to discovery of contraband. Here, the disclosure by petitioner led to no fresh recovery; hence, Section 27 did not validate it.
Bail Bar under Section 37, NDPS Act:
- Section 37 requires the public prosecutor to be heard and the court to satisfy two conditions before granting bail in commercial‐quantity or financing offences. It is not an absolute prohibition.
- On the material—small‐quantity recoveries from co‐accused, seizure memos, CDRs showing telephonic contacts—the court found only suspicion, not prima facie proof, of petitioner’s guilt under Section 27‑A.
- Absence of prior criminality and parity with co‐accused who obtained bail weighed in favour of release.

3.3. Impact

This judgment is significant for several reasons:

It reinforces long‑standing evidence‐law safeguards against police‐custodial confessions and prevents their misuse to deny interim liberty.
It clarifies that Section 37 NDPS Act is directory, not mandatory, and lays down a two‑fold judicial satisfaction requirement—innocence prima facie and no re‐offence prospect—before bail.
The decision underscores that CDRs alone, without content proof (e.g., call recordings), may not suffice to establish a financing or harboring‐offence prima facie.
Trial courts will be guided to re‑evaluate bail bars in NDPS cases, balancing public interest against the accused’s fundamental right to liberty when evidence is weak or legally inadmissible.

Complex Concepts Simplified

Small Quantity vs. Commercial Quantity (NDPS Act): Statutorily defined thresholds. Small quantity offenses attract lighter punishment; commercial quantity triggers harsher sanctions and stricter bail norms.
Section 27‑A (NDPS Act): Offence of financing illicit drug trafficking—providing money, resources or harboring traffickers. Carries a “commercial quantity” bar for bail under Section 37.
Section 37 (NDPS Act): Mandates hearing by public prosecutor and court satisfaction of two conditions (innocence prima facie and no likelihood of re‐offence) before granting bail in commercial‐quantity/financing cases.
Section 26 & 27 (Evidence Act): Section 26 excludes police‐recorded confessions; Section 27 selectively admits disclosures leading to material recovery only.
Call Detail Records (CDRs): Logs of call metadata (time, duration, numbers). Indicative of contact but not content of conversations; insufficient alone to prove criminal conspiracy or financing.

Conclusion

Yugraj Singh v. UT of J&K marks a crucial reaffirmation of evidentiary safeguards and calibrated bail standards in NDPS financing cases. The High Court underscored that:

Police‐custodial “confessions” remain inadmissible against the accused under Sections 26 and 27 of the Evidence Act unless they lead to tangible recovering of contraband.
Section 37 NDPS Act does not impose an absolute bar on bail; courts must be satisfied prima facie of the accused’s innocence and non‐recidivism.
Suspect materials like CDRs, without corroborative evidence, may not sustain a bail‐denial in financing or harboring offences.

This judgment strengthens the balance between combating narcotics crime and upholding constitutional liberty, guiding lower courts to exercise bail jurisdiction with both vigilance and fairness.