Tofan Singh weakened the NCB's case. The Supreme Court still sent him back to jail.

Thirteen Kilos of Morphine, One Tea Shop Owner, and the Bail That Vanished

Khalil Uddin ran a tea shop. He was not a drug trafficker by trade. But when the Narcotics Control Bureau (NCB) recovered roughly 13 kilograms of morphine from a car in Assam, the investigation led straight to him. The car's driver, Md. Jakir Hussain, was caught red-handed. The car belonged to one Md. Nizam Uddin, who had sold it to Md. Abdul Hai. Jakir Hussain was Abdul Hai's driver. And the contraband, the NCB alleged, was meant for Khalil Uddin. Both Khalil Uddin and Abdul Hai were arrested. They spent about a year in custody. Then the Gauhati High Court granted them bail. The NCB, furious, rushed to the Supreme Court. The question was brutal: could a tea shop owner walk free when 13 kilos of morphine was at the centre of the case? The Supreme Court said no. And in doing so, it delivered a sharp reminder about the unforgiving bail regime under the NDPS Act.

The Car, the Driver, and the Chain of Custody

The story begins with NCB Crime No. 13/2019. The NCB seized the morphine from a motor vehicle. The driver, Jakir Hussain, was arrested. His statement under Section 67 of the NDPS Act — the power to call for information — pointed fingers at Abdul Hai, who owned the vehicle and employed him. The investigation then reached Khalil Uddin, the alleged recipient. Both were charged under Sections 21(c) (possession of commercial quantity of manufactured drugs) and 29 (abetment and criminal conspiracy) of the NDPS Act.

The case was straightforward on paper. But the law had shifted under the NCB's feet. In Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1, the Supreme Court had held that statements recorded under Section 67 of the NDPS Act are not admissible as confessions. They are not the same as a judicial confession or a statement to a police officer. This ruling had sent shockwaves through the drug law enforcement community. Suddenly, the primary tool for building a case — the Section 67 statement — was severely restricted.

The High Court's Gamble

On January 19, 2022, the Gauhati High Court granted bail to both Khalil Uddin (in BA 2356/2021) and Abdul Hai (in BA 2955/2021). The High Court appears to have been influenced by Tofan Singh. If the Section 67 statements were of doubtful admissibility, what was left? The accused had already spent a year in custody. The High Court likely thought the case was weak. It let them out.

The NCB did not agree. It approached the Supreme Court by way of Special Leave Petitions, which were converted into Criminal Appeal Nos. 1841-1842/2022. The core argument was simple: the High Court had ignored Section 37 of the NDPS Act. That provision makes bail the exception, not the rule, for offences involving commercial quantities. The public prosecutor must be heard. And the court must be satisfied that there are reasonable grounds for believing that the accused is not guilty and is not likely to commit any offence while on bail. The High Court, the NCB argued, had not applied this test at all.

The Supreme Court's Two-Step Analysis

Justice Uday Umesh Lalit, writing for the two-judge Bench that also included Justice Bela M. Trivedi, did something interesting. He did not ignore Tofan Singh. He acknowledged it fully. He also acknowledged the follow-up decision in State by (NCB) Bengaluru v. Pallulabid Ahmad Arimutta & Anr. (2022 LiveLaw (SC) 69), which had held that the rigour of Tofan Singh applies even at the stage of grant of bail. So the NCB could not rely solely on Jakir Hussain's Section 67 statement to nail Abdul Hai and Khalil Uddin.

But the Bench found something else. The NCB had also recorded the statement of Md. Nizam Uddin — the original owner of the car. That statement was not recorded under Section 67. It was a different piece of evidence. And it connected the accused to the contraband. The Court noted that this statement placed the matter on a "different footing." Even if the Section 67 statements were weakened by Tofan Singh, this independent material existed. And that was enough to trigger the stringent conditions of Section 37.

The Doctrine That Mattered: Section 37's Iron Grip

Here is the legal heart of the judgment. Section 37 of the NDPS Act creates a two-layered barrier to bail for commercial quantity offences. First, the court must give the public prosecutor an opportunity to oppose the application. Second, the court must be satisfied that there are reasonable grounds for believing that the accused is not guilty and will not commit an offence while on bail. This is not the ordinary "bail is the rule, jail is the exception" standard of the CrPC. This is a reverse burden. The accused must show they are likely innocent.

The Supreme Court held that the High Court had failed to apply this test. It had not considered whether the independent material — Nizam Uddin's statement — created reasonable grounds to believe the accused might be guilty. The Bench was clear: even if the Section 67 statements are of doubtful admissibility, the existence of other incriminating material can independently sustain the Section 37 threshold against bail.

THE PLAY: When challenging a bail order under the NDPS Act, do not rely solely on the weakness of the prosecution's Section 67 statements. Instead, identify any independent material — a non-Section 67 statement, a recovery memo, a forensic report — that can independently satisfy the Section 37 threshold. That is the winning move.

The Retracted Statement Problem

There was a wrinkle. The Court noted, almost in passing, that Nizam Uddin's statement was "allegedly retracted later." This was not a central finding. The Court did not decide whether the retraction was valid. But it treated the statement as placing the matter on a different footing anyway. This is significant. It suggests that at the bail stage, a retracted statement can still be considered for the limited purpose of assessing whether there are reasonable grounds for believing the accused is not guilty. The full trial will test the statement's reliability. But for bail, the mere existence of such a statement — even if later denied — can block release.

This is a dangerous zone for defence lawyers. If you represent an accused in a commercial quantity NDPS case, and the only material against your client is a Section 67 statement, you have a strong Tofan Singh argument. But if the prosecution has even one piece of independent material — a statement from a third party, a call data record, a forensic link — the Section 37 barrier becomes nearly insurmountable. The retraction of that independent material does not automatically help you at the bail stage.

What the Court Ordered

The Supreme Court allowed the appeals. It set aside the Gauhati High Court's bail order dated January 19, 2022. It directed that both Khalil Uddin and Abdul Hai be taken into custody forthwith. And it directed the trial court to conclude the proceedings as early as possible, preferably within six months from the receipt of the order. The message was clear: the High Court had erred, and the accused would not be allowed to remain free while the trial dragged on.

Why This Matters for Practitioners

For advocates handling NDPS cases, this judgment is a mandatory read. It clarifies the interplay between Tofan Singh and Section 37. The key takeaway is this: Tofan Singh does not automatically entitle an accused to bail. It only restricts the use of Section 67 statements. If the prosecution has other evidence — even a retracted statement from a non-accused — the Section 37 barrier remains intact.

For CFOs and founders, the lesson is different. The NDPS Act is not just about street-level dealers. It targets the entire supply chain. If your company's logistics are used — even unknowingly — to transport contraband, the law will trace the chain of custody back to the owner of the vehicle, the employer of the driver, and the intended recipient. The bail conditions are so stringent that even a year in custody is not enough to secure release. Due diligence on your supply chain is not just a business risk; it is a liberty risk.

For the tea shop owner from Assam, the judgment meant a return to jail. For the law, it meant a reaffirmation of the NDPS Act's uncompromising bail regime. The Supreme Court did not invent new law. It simply applied the existing law with surgical precision. And it reminded every court in the country that when commercial quantities of narcotics are involved, bail is not a right. It is a rare concession.

The bottom line: If you are defending an NDPS commercial quantity case, do not assume that Tofan Singh is a magic wand — you must also attack every piece of independent material, because even a retracted statement can block bail under Section 37.