CDRs Without Voice Evidence Insufficient To Connect Co-Accused: Jammu & Kashmir and Ladakh High Court Grants Bail To NDPS Accused

The Court was hearing a bail application filed under Section 483 of BNSS by a man arrested by the NCB in connection with the alleged trafficking of commercial quantities of codeine syrup, Alprazolam tablets, and Spasmo-Proxyvon capsules.

A Bench comprising Justice Sanjay Dhar, while making these observations, remarked that “CDR details showing contact between the petitioner and co-accused, without there being any voice recording relating to conversation between them, may not be sufficient to convict the petitioner for the offence for which he has been booked.”

The High Court also highlighted that neither the petitioner’s statement nor the co-accused’s statement recorded under Section 67 of the NDPS Act could be relied upon, in view of the Supreme Court’s ruling in Tofan Singh v. State of Tamil Nadu.

Advocate Mehtab Gulzar represented the petitioner, while Vishal Sharma, DSGI, appeared on behalf of the respondents.

Background

NCB Jammu received a secret input about two individuals transporting a drug consignment from Delhi to Anantnag. When the bus they were travelling in was intercepted, narcotic syrups, tablets and capsules were allegedly recovered.

During the investigation, the co-accused made confessional statements under Section 67 of the NDPS Act, implicating themselves and the petitioner. The petitioner’s own statement was also recorded under the same provision.

After his arrest, mobile phones were seized, and CDR analysis showed that the petitioner was in contact with the co-accused. A complaint was then filed before the trial court for offences under Sections 8, 21, 22 and 29 of the NDPS Act involving a commercial quantity.

The petitioner sought bail on the ground that Section 67 statements are inadmissible and CDRs alone do not establish involvement. The NCB opposed bail, citing the bar under Section 37 of the NDPS Act.

Court’s Observations

The J&K and Ladakh High Court first analysed the settled principles governing bail under the NDPS Act, particularly where a commercial quantity is involved, noting that Section 37 requires satisfaction that the accused is not guilty and is unlikely to commit an offence while on bail.

On the evidentiary value of confessional statements before NCB officials, the Court referred to the three-judge bench judgment in Tofan Singh v. State of Tamil Nadu, holding that statements under Section 67 of the NDPS Act are inadmissible. Therefore, statements of the co-accused or the petitioner given to NCB, the Bench held, could not be considered.

This left only the call detail records, which the prosecution argued showed coordination for drug delivery. However, the High Court held that the CDR details showing contact between the petitioner and co-accused, without there being any voice recording relating to the conversation between them, may not be sufficient to convict the petitioner.

The Court further observed that no other material had been produced to demonstrate that the petitioner had previously engaged in similar conduct, nor was there anything to suggest that he would abscond or threaten witnesses if released.

Given the lack of admissible evidence connecting the petitioner to the recovered narcotics, the Court concluded that there were reasonable grounds to believe he was not guilty.

Conclusion

Accordingly, the High Court allowed the bail application. The petitioner was enlarged on bail on conditions including furnishing solvent sureties, appearing before the trial court on each date of hearing, not contacting prosecution witnesses, not leaving the Union Territory without permission, and surrendering his passport.

Cause Title: Sareed Ahmed Ganie v. Union of India & Another

Appearances

Petitioner: Advocates Mehtab Gulzar and Murtaza Kamaal

Respondents: DSGI Vishal Sharma and Advocate Sumant Sudan

Click here to read/download Judgment