Guest Post: Anticipatory Bail, Disclosure Statements, and the 'Samarth Kumar' Jurisprudence

(This is guest post by Pratyay Amrit and Rohan Gajendra Pratap Singh)

The Narcotic Drugs and Psychotropic Substances Act, 1985 ("the Act") was enacted to tackle illicit drug peddling and consumption in Indian society – not without the oft repeated criticism of aligning with the United States’ ‘War on Drugs’ and consequently, international and intra-national illicit drug trade. Until the judicial pronouncement mentioned in the following paragraph, Indian High Courts were of the opinion that a person may be entitled to anticipatory bail under the Act if the only evidence against them is a disclosure statement made by a co-accused to an investigating officer under the Act. This was in line with the decision in Tofan Singh v. State of Tamil Nadu (“Tofan Singh”) wherein the Supreme Court held that officers falling within the ambit of Section 53 of the Act have powers akin to that of an office-in-charge of a police station, meaning that confessions made to them – specifically officers enumerated under Section 42 of the Act – under Section 67 of the Act would be akin to statements made to the police under Section 161 of the Code of Criminal Procedure, 1973 (“CrPC”). The corresponding section is Section 180 in the Bharatiya Nagrik Suraksha Samhita (“BNSS”). Consequently, such statements would be inadmissible as evidence as per Section 25 of the Indian Evidence Act (“IEA”) and correspondingly, Section 23(1) of the Bharatiya Sakshya Adhiniyam.

However, a series of judgments post Tofan Singh have followed a different route. It can be traced back to a 2022 decision in State of Haryana v. Samarth Kumar (“Samarth Kumar”) which seemingly shut the door for such accused persons to rely on Tofan Singh while seeking pre-arrest bail even when there had been no recovery from them. The only circumstance implicating them in the case was a disclosure statement under Section 67 of the Act. This effectively means that people will be arrested under the Act even absent any material recovery and thus, will be forced to seek regular bail under stringent twin conditions. We argue that such a development has rendered the Act, widely regarded as draconian, stricter and created room for its weaponisation. This analysis is based on the judicial practice followed in cases which sprung up post Samarth Kumar which we argue, is a corruption of the rationale in Tofan Singh. We argue that the grant or refusal of anticipatory bail must depend on multifaceted considerations as has been enumerated in Indian jurisprudence.

The Tofan Singh Ratio

The 2020 judgment in Tofan Singh was the result of a reference made by a Division Bench in 2013 where that bench first gave the conclusion that statements under Section 67 of the Act could not be used, which was later affirmed by a majority in 2020. For almost a decade thereafter, the dominant jurisprudence was that when a person is implicated merely on the basis of a disclosure statement of a co-accused made under Section 67, they are entitled to anticipatory bail if there is no other evidence to corroborate the disclosure statement including lack of recovery of contraband. 

While the reasonability of factors indicating a bail applicant’s innocence may be varied, a scenario that merits careful consideration considering the Tofan Singh verdict arises when a person is implicated solely on the basis of a statement made by an accused under Section 67 of the Act. The said section empowers an officer under Section 42 of the Act to examine any person acquainted with the case and even to call for information from any person to determine whether any provision of the Act has been contravened.

Understandably, this dichotomy creates confusion as to whether Tofan Singh ought to be applied in a way that would allow for the grant of anticipatory bail when the bail applicant’s involvement is not hinged on any factor other than the disclosure statement of a co-accused. While the ratio in Samarth Kumar suffered by reason of the order being non-speaking, perhaps the observations of the Supreme Court in a 2001 judgment in Murleedharan v. State of Kerala lend some strength to its ruling. The Apex Court while dealing with the bail provision of the Kerala Abkari Act had held that the same was in pari materia with Section 37 of the Act. Denying anticipatory bail, the Supreme Court chastised the Sessions Court for granting pre-arrest bail on the ground that only the confessional statement of the accused connected the applicant with the offence. It was observed that it could not be concluded at such an early stage that the investigating agency would not collect further evidence to establish the nexus between the applicant and the offence and that custodial interrogation was crucial to unearth all necessary evidence. However, it is important to note that this decision was rendered much before the verdict in Tofan Singh and that it is open to the court granting anticipatory bail to direct the accused to join the investigation, failing which the anticipatory bail may be cancelled (reading Sections 437(5) and 439 CrPC).

The Backdrop Of Samarth Kumar & The Jurisprudence After

In its order dated 16.07.2021 in Daljit Singh v. State of Haryana, the Punjab and Haryana High Court granted anticipatory bail relying on the ratio in Tofan Singh (by now affirmed by the Three Judges' Bench). It was observed that the petitioner was incriminated based on the disclosure statements of the co-accused. Since such confessional statements cannot be relied upon in a trial for an offence under the Act as per the ratio in Tofan Singh, the court allowed anticipatory bail. The same view was upheld in a host of other orders including in Kamal Chand v. State of Himachal Pradesh wherein the High Court of Himachal Pradesh by order dated 22.11.2022 held that the disclosure statement of a co-accused would not be sufficient to deny anticipatory bail, even when call detail records between the petitioner and co-accused are available since such call records are matters to be examined at the stage of trial. The bench used the provision of bail bond to grant the necessary relief to the accused. Importantly, this verdict came after Samarth Kumar highlighting the beginning of the inconsistency in jurisprudence with a binary choice between Samarth Kumar and Tofan Singh. 

The Supreme Court in Samarth Kumar effectively foreclosed reliance on this line of reasoning to allow pre-arrest bail. While doing so, it observed without further elucidation that reliance on Tofan Singh may be placed at the stage of regular bail or final hearing. In effect, Samarth Kumar had excluded reliance on Tofan Singh in considering anticipatory bail applications without providing sufficient justification for negativing this oft-adopted argument. In light of Samarth Kumar, courts have displayed refusal – inconsistently – in granting pre-arrest bail when a person having no criminal antecedents is implicated solely on account of a disclosure statement, even when there has been no recovery of contraband from them.

The Law & The Trouble

Section 37 of the Act affirms the cognizable and non-bailable nature of offences under the Act. It further outlines the procedure for grant of bail to a person accused of an offence under the Act. The section further lays out the twin conditions for offences involving commercial quantity or if they are amongst 3 offences under the Act (namely Sections 19, 24 and 27A). Samarth Kumar dealt with – among others – Section 27A of the Act which deals with financing illicit drug trafficking and harbouring offenders. Thus, the twin conditions would apply to this case. There is a clear and rational nexus in being more stringent with commercial quantity offences. Interestingly, Table 1A.5 of the National Crime Records Bureau data for Special and Local Laws for 2022 divides the incidents under the Act on two broad parameters – either concerning personal or commercial usage in roughly a 3:1 ratio with a total of ~1.11 lakh incidents in 2022. Given the causality implicit in incidents concerning commercial quantities, an argument could be made to justify imposition of twin conditions in commercial quantity cases in a blanket manner. However, the Supreme Court verdict in Sanjay Chandra v. CBI (“Sanjay Chandra”) had held that bail – while itself a fact-based discretionary power in non-bailable offences concerning the twin condition – still must adhere to certain foundational principles of objectivity. One would be the test of ‘necessity’. 

In this regard, the recent division bench verdict in Tarsem Lal v. Directorate of Enforcement is helpful. When the accused complies with summons issued by court, there is no need for him to seek anticipatory bail. While this flows from Section 88 of the CrPC – and correspondingly, Section 91 of the BNSS – the underlying idea is that of ‘necessity’. Section 88 CrPC or Section 91 BNSS alleviates the issue elucidated in Sanjay Chandra. Notably, the judgment in Sanjay Chandra had emphasised on considering criminal antecedents and the absence of it in determining the grant of anticipatory bail. This is observed in numerous cases including in order dated 21.02.2023 in Aniket v. State of Punjab and order dated 23.09.2022 in Gurpreet Singh v. State of Punjab wherein the Punjab and Haryana High Court refused to rely on Tofan Singh while considering anticipatory bail applications as per the ratio in Samarth Kumar. The Special Leave Petitions filed against these orders were also dismissed by the Supreme Court by orders dated 28.04.2023 and 07.11.2022 respectively. At the same time, another bench of the Supreme Court found force in the very argument that High Courts countenanced before the order in Samarth Kumar was pronounced. In Vijay Singh v. State of Haryana, a division bench of the Supreme Court by its order dated 17.05.2023 allowed anticipatory bail to the applicant on the ground that he was implicated by the disclosure statement of the other co-accused, even though he was already enlarged on bail in a separate matter under the Act. This is in contradiction with Samarth Kumar. Ironically, this verdict also does not provide any reasoning for its conclusion.

Further, in Union of India v. Shiv Shankar Kesari, the Supreme Court had clarified that a court was not required to determine whether the applicant under Section 37 is guilty or innocent but is merely “called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds.” This is standard for any interpretation concerning twin conditions in any criminal statute. However, this has led to the courts rendering varying interpretations of the threshold required to be met to be allowed the relief of bail under the Act, and even more so for anticipatory bail. This threatens to fortify an already stringent bar to getting relief under Section 37 into an unassailable impediment for persons implicated on flimsy grounds.

Balancing the Scales

Rather than a blanket rejection of the ratio in Tofan Singh at the stage of anticipatory bail, courts must collectively look for substantive material corroborating the confessional statements and consider other factors such as the applicant’s antecedents, possibility of fleeing justice or committing further offences, and the motive behind accusations. This also affirms the Supreme Court verdict in Siddharam Satlingappa Mhetre v. State of Maharashtra which had further emphasised on the cooperation of the accused as a dominant factor in grant of anticipatory bail and bail in general. It held that the power to grant anticipatory bail is not restricted to exceptional cases but based on the particulars of each case. Accepting the ratio in Samarth Kumar would imply that it might be impossible to obtain anticipatory bail for any offence under the Act in any case, because the prosecution would need only to rely on a disclosure statement to have the application rejected. Courts must require a greater nexus between the applicant and the offence, such as their involvement in other offences under the Act, availability of transcripts or recordings of communications with the accused indicating that the applicant is guilty, a suspicious money trail, ownership of apprehended vehicle etc. In fact, the Punjab-Haryana High Court, in Vikrant Singh v. State of Punjab, had acknowledged Samarth Kumar and yet, relied on the audio transcripts to reject the application for denial of bail as meritless. Thus, the issue boils down to the Janus of judicial application here – either follow Tofan Singh and the rationale therein or follow Samarth Kumar which does not provide any reason whatsoever. The problem greater than Samarth Kumar is the way the courts have dealt with similar cases as has been shown in the judgments mentioned above.

Crucially, Section 37 of the Act read with Section 438 of the CrPC empowers courts to grant anticipatory bail when there are “reasonable” grounds indicating that the accused is not guilty. When there is no material incriminating an individual except a confessional statement under Section 67 – which of itself carries little evidentiary value – it might be reasonable to believe that the bail applicant is not guilty for the purposes of bail. The State cannot produce any lesser evidence than the implication in a confessional disclosure statement to seek denial of anticipatory bail. At the same time, the applicant cannot lead any stronger evidence or plead on any other ground apart from referring to a lack of evidence corroborating the disclosure statement. The same ought to suffice as a “reasonable ground” to believe that the applicant is not guilty.

Conclusion

While it is true that custodial interrogation of an accused may be expedient to unearth evidence of offences under the Act, an outright denial of anticipatory bail in cases where the applicant is implicated solely by a disclosure statement of an accused would risk opening individuals – who are falsely being named to be framed, to derail the investigation, or to protect the actual perpetrator – up to humiliation and harassment. A court should not defer applying its mind regarding the freedom of an individual until after he is arrested when the Act itself does not make a distinction between pre and post-arrest bail. The creation of a two-tier system where Tofan Singh does not apply at one stage but applies at a later stage is without reason – as is clear from the language in Samarth Kumar. Preventing reliance on Tofan Singh at the anticipatory bail stage appears to serve no purpose when the court might accept the same argument at a regular bail hearing post-arrest without any change in circumstance in the meanwhile.