Gauhati High Court on NDPS Bail: Why a Co-Accused's Confession Under Section 67 Cannot Deny Liberty

Overview of the Case

The Gauhati High Court, in Themboi @ Smt. Themboi Singson Vs Union of India, decided Bail Appln. No. 2752/2024 on 03/10/2024, addressed a significant question arising at the intersection of personal liberty, constitutional guarantees, and the stringent bail provisions embedded within the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The petitioner, Smt. Themboi Singson, had been in custody since 15.09.2023 in connection with a case registered as CRL NDPS Case No. 92/2024, pending before the District & Sessions Judge, Kamrup (M), Guwahati, arising from DRI Case No. 16/CL/NDPS/HEROIN/DRI/GZU/2023-24.

The core question before the Court was whether an accused person from whose physical possession no contraband was recovered could be denied bail solely on the strength of a co-accused's disclosure or confessional statement made under Section 67 of the NDPS Act, 1985, particularly when the trial had stalled despite an earlier judicial direction to conclude proceedings within six months.

Note: The Supreme Court subsequently cancelled the bail granted by the Gauhati High Court to Themboi Singson. Readers should refer to the Supreme Court's order for the final legal position in this matter.

Background and Factual Matrix

The DRI's Case

The Directorate of Revenue Intelligence (DRI), Guwahati Zonal Unit, acting on specific intelligence, conducted an operation on 15.09.2023. Officers proceeded to Room No. 5 of Lamka Guest House, Rajgarh, Link Road, House No. 04, Anil Nagar, Guwahati, Assam, where two individuals were found in possession of a bag containing 88 soap cases filled with a pinkish powdery substance suspected to be heroin. The total quantity recovered was 1118.210 grams of heroin. Both individuals were apprehended at the site.

Role Attributed to the Petitioner

During subsequent inquiry, the two apprehended persons disclosed to DRI Officers that a third person — the petitioner, Smt. Themboi Singson — was lodged separately at Room No. 407 of Maa Kamakhya Grand Hotel, Chhatribari, Guwahati, with the alleged purpose of identifying prospective buyers for the contraband. Acting on this disclosure, DRI Officers proceeded to the hotel and arrested the petitioner on 15.09.2023.

Crucially, no contraband of any nature was recovered from the physical possession of Smt. Themboi Singson at the time of her arrest. The entire case against her rested on the disclosure/confessional statements made by her co-accused from whom the recoveries were effected at a separate location.

Earlier Bail Refusal

The petitioner had previously approached the Gauhati High Court through Bail Appln. No. 1287/2024. Under its order dated 06.06.2024, the Court had declined bail at that stage, citing the early stage of trial and the nature of the allegations. Simultaneously, the Court had directed completion of the trial within six months. However, when the present application came up, the trial had not progressed as directed.

Section 37 of the NDPS Act, 1985 imposes a twin-condition test that courts must satisfy before granting bail in NDPS matters. These conditions are:

  1. The Public Prosecutor must be given an opportunity to oppose the bail application.
  2. The Court must be satisfied, after such hearing, that:
    • There are reasonable grounds for believing that the accused is not guilty of the alleged offence; and
    • The accused is not likely to commit any offence while on bail.