Bombay High Court

VIJAY ALIAS PAPPU BAJARANG FAKADEversusTHE STATE OF MAHARASHTRA AND ANR.

Disposal: Allowed

Holding

The court held that the applicant is entitled to bail as the prosecution’s case rests solely on an inadmissible co‑accused statement and no other material links the applicant to the offence.

Summary

The High Court considered a bail application filed under Section 483 of the BNSS 2023 by Vijay Alias Pappu Bajarang Fakade, who was charged under Sections 8(c), 20(b)(ii)(C) and 29 of the NDPS Act for alleged involvement in a drug seizure. The prosecution’s case relied solely on a statement made by a co‑accused while in police custody, with no contraband found on the applicant and no financial or communication links. The defence argued that the co‑accused’s statement is inadmissible under Section 67 of the NDPS Act, as affirmed by the Supreme Court in Toofan Singh v. State of Tamil Nadu. The court noted the applicant had no prior NDPS offences and that the seized quantity was commercial, but the lack of direct evidence meant the stringent bail conditions of Section 37 did not apply. Consequently, the court granted regular bail with a personal bond and several reporting conditions, disposing of the bail application in the applicant’s favour.

Issues considered

Whether the statement of a co‑accused recorded under police custody is admissible against the applicant under the NDPS Act.
Whether the applicant, lacking direct evidence of possession or involvement, is entitled to bail despite the commercial quantity of narcotics seized.
Whether Section 37 of the NDPS Act, which restricts bail, should apply in the present case.

Legislation cited

Bail and Surrender of Sureties (BNSS) Act, 2023 — s. 483
Indian Evidence Act, 1872 — s. 25
Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 20(b)(ii)(C), 29, 37, 67, 8(c)

Subjects

bail
NDPS Act
confessional statement
Section 67
Section 37
evidence admissibility
commercial quantity
criminal antecedents

Judgment

12-BA-904-2026.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIRCUIT BENCH AT KOLHAPUR
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 904 OF 2026
Vijay Alias Pappu Bajarang Fakade ...Applicant
Versus.
The State of Maharashtra And Anr. ...Respondents
-----
Mr. Somnath Thengal, Advocate for the Applicant.
Ms. Mahalakshmi Ganapathy, APP for the Respondent – State.
-------
CORAM : ASHWIN D. BHOBE, J.
DATE : 29th September, 2026.
P.C. :

1. Heard, Mr. Somnath Thengal, learned Advocate for the Applicant

and Ms. Mahalakshmi Ganapathy, learned APP for the Respondent –

State.

2. By the present Application filed under Section 483 of BNSS 2023,

the Applicant seeks Regular Bail in respect of Crime No. 124 of 2026

registered at MIDC Kupwad Police Station for offences punishable

under Sections 8(c), 20(b)(ii)(C) and 29 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (NDPS Act, 1985).

3. Mr. Somnath Thengal, learned Advocate for the Applicant, states

that there are five (5) Accused in Crime No. 124 of 2026, with the

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Applicant being Accused No. 5. He further states that Crime No. 124 of

2026 is registered as Special Case (NDPS) No. 159 of 2026 and is

pending before the Additional Sessions Judge, Sangli (“Trial Court”).

4. The prosecution case is that on 20.05.2026, secret information

was received that a golden-coloured Innova vehicle without a number

plate was proceeding towards Kavalapur MIDC, Kupwad Road, carrying

ganja. As per the information, the police followed the vehicle and

stopped it at Kupwad on 21.05.2026. The driver Accused No. 1-Vicky

Vijay Kamble, started running away but was apprehended and the

contraband seized.

5. The Applicant was arrested on 22.05.2026. Bail Application at

Exhibit-4 filed in Special Case (NDPS) No. 159 of 2026, was rejected by

the Trial Court on 29.08.2026.

6. Mr. Somnath Thengal, learned Advocate for the Applicant,

submits that the Applicant's involvement in Crime No. 124 of 2026 is

based on the statement of a co-accused, i.e. Accused No. 1 in the crime.

He submits that the statement of Accused No. 1 is inadmissible as it is

hit by the provisions of Section 67 of the NDPS Act. He submits that the

Applicant was not found in possession of any contraband. He submits

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that there are no CDR records or any financial transactions between the

Applicant and the other accused in the crime.

7. Ms. Mahalakshmi Ganapathy, learned APP for the Respondent –

State, submits that the offence is under the NDPS Act, a serious offence

and that the Applicant has criminal antecedents to his credit. She

therefore opposes the grant of bail.

8. Mr. Somnath Thengal, learned Advocate for the Applicant, states

that the Applicant has no antecedents in respect of any offence under

the NDPS Act.

9. Perused the records with the assistance of the learned Advocate

for the parties.

10. The seized contraband is of commercial quantity.

11. The chargesheet in Crime No. 124 of 2026 shows that the

prosecution has implicated the Applicant solely on the basis of a

statement made by the co-accused (Vicky Vijay Kamble – Accused No.

1) while he was in police custody. No other material has been placed on

record to establish the Applicant's involvement or complicity in Crime

No. 124 of 2026.

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12. The Hon’ble Supreme Court in the case of Toofan Singh v. State

of Tamil Nadu1 in paragraph no. 158.1 and 158.2, has observed as

follows :-

158.1. That the officers who are invested with powers
under Section 53 of the NDPS Act are “police officers” within
the meaning of Section 25 of the Evidence Act, as a result of
which any confessional statement made to them would be
barred under the provisions of Section 25 of the Evidence Act,
and cannot be taken into account in order to convict an accused
under the NDPS Act.

158.2. That a statement recorded under Section 67 of
the NDPS Act cannot be used as a confessional statement in the
trial of an offence under the NDPS Act.

13. Though Ms. Mahalakshmi Ganapathy, learned APP for the

Respondent – State, has pointed out the Applicant's antecedents, a

perusal of the antecedents does not indicate that they pertain to any

offence under the NDPS Act.

14. In the above circumstances, prima facie, there are reasonable

grounds to believe that the Applicant is not involved in the said

offences. Accordingly, the rigours of Section 37 of the NDPS Act would

not apply. The Applicant is therefore entitled to bail.

1 (2021) 4 SCC 1

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15. In view of the above, this Application is allowed on the following

terms :-

(a) Applicant in Crime No. 124 of 2026

dated 21.05.2026, registered with MIDC Kupwad

Police Station, shall be released on bail upon

furnishing a PR bond of Rs. 1,00,000/- (Rupees One

Lakhs Only) with one or two sureties in the like

amount, to the satisfaction of the Trial Court in

Special Case (NDPS) No. 159 of 2026.

(b) Applicant shall not, directly or indirectly,

make any inducement, threat or promise to any

person acquainted with the facts of the case to

dissuade that person from disclosing the facts to the

Court or any police officer. Applicant shall not

tamper with evidence in any manner.

Investigating Officer, MIDC Kupwad Police Station,

on the first Monday of each month, from 11.00 a.m

to 12.00 p.m., commencing from 05.10.2026, till the

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conclusion of trial in Special Case (NDPS) No. 159 of

2026.

(d) Applicant shall, within three (3) days of his

release, provide the Investigating Officer at MIDC

Kupwad Police Station with his residential address

and proof thereof, his contact number, email and

must inform the Investigating Officer of any changes

to this information from time to time.

(e) Applicant shall surrender his passport, if

any, to the Investigating Officer, MIDC Kupwad Police

Station within three (3) days of his release.

(f) Applicant shall regularly appear before

the Trial Court in Special Case (NDPS) No. 159 of

2026, whenever the matter is fixed, unless

specifically exempted. If the Applicant fails to appear

before the Trial Court on the fixed date, it will be

considered a breach of condition, and the Trial

Court, will be at liberty to pass appropriate orders.

(g) Applicant shall not indulge in similar
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offences punishable under the NDPS Act.

16. The observations made in the present order are meant for the

purpose of deciding the Bail Application and would not have any impact

or effect on the trial.

17. Bail Application No. 904 of 2026 is disposed of.

(ASHWIN D. BHOBE, J.)

Digitally
signed by
ARJUN
ARJUN KRISHNA
KRISHNA RODGE
RODGE Date:
2026.09.30
21:51:12
+0530

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