Call Logs Alone Cannot Establish Role: J&K And Ladakh High Court Grants Bail To Accused In Cross-LOC Drug Trafficking Case

The Court was hearing a bail application challenging an order of the Special Judge (NDPS Cases), Srinagar rejecting a plea for bail in a case arising out of FIR registered at Police Station Rajbagh, Srinagar for offences under Sections 8/21, 27-A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and Section 201 IPC concerning alleged cross-border smuggling of heroin from Pakistan-occupied Kashmir (POK).

A Bench of Justice M. A. Chowdhary, while granting bail to the accused, observed: “The Petitioner has been charged for the commission of the offences on the basis of the disclosure statements made by accused No. 1 and 2, from whom the contraband was recovered and seized, with the accusation that he had entered into a conspiracy with them for procurement of the seized contraband from POK from the absconding accused-Nazir Bhai and that he had made calls from his Mobile Phone to the accused No. 1 and 2 and shared his location to them around the time of seizure and recovery”.

Therefore, the Bench accordingly held: “… the only evidence against the Petitioner is the statements made in their disclosures by the co-accused No. 1 and 2 and the calls made by him to them. Without any other evidence from CDRs showing contact between an accused and a co-accused are not sufficient to establish a nexus with drug trafficking, especially without a voice recording or transcripts of the conversation. As per the Prosecution Story, there is neither any recording nor any transcript of the conversation on the file, as such, call logs alone cannot prove a criminal conspiracy of sale or transportation of drugs”.

S.T. Hussain, Senior Advocate, with Advocate Nida Nazir, appeared for the petitioner. Government Advocate Faheem Nisar Shah appeared for the respondents, vice Mohsin-ul-Showkat Qadri, Senior AAG.

Background

According to the prosecution, Police Station Rajbagh received information that two persons residing in a rented accommodation at Kursoo Bund, Rajbagh, were dealing in contraband substances allegedly procured illegally from Karnah and transported to Srinagar for sale.

Following registration of the FIR, the police conducted a raid at the rented premises and allegedly recovered 11 kilograms of heroin concealed under a bed along with cash amounting to over Rs. 11 lakhs.

The prosecution further alleged that during the investigation, the accused persons disclosed before the Magistrate that the heroin had been procured from Nazir Ahmad, allegedly residing in Muzaffarabad, POK, and transported from Karnah to Srinagar through vehicles used by the accused persons.

The petitioner was arrayed as accused No. 4 and was charge-sheeted under Sections 8/21/29 of the NDPS Act on allegations that he had abetted the procurement and transportation of heroin from POK under a criminal conspiracy and had shared his location with the co-accused through phone calls and WhatsApp communication.

The trial court had earlier rejected his bail application, observing that the matter involved cross-border smuggling with possible implications beyond an ordinary NDPS case and that the rigours of Section 37 of the NDPS Act were attracted.

Court’s Observation

The High Court examined the material collected during the investigation and noted that no contraband substance had been recovered from the petitioner.

The Court observed that the petitioner had principally been implicated for the offence under Section 29 of the NDPS Act based on disclosure statements made by co-accused persons and allegations regarding phone calls exchanged between them.

The Bench rejected the petitioner’s contention that the absence of a charge under Section 120-B IPC was fatal, holding that Section 29 of the NDPS Act substantially covers criminal conspiracy in the context of narcotic offences.

The Court, however, found that the only material against the petitioner consisted of disclosure statements made by co-accused persons and call detail records showing contact between them.

The Bench observed that there were neither voice recordings nor transcripts of the alleged conversations forming part of the prosecution material.

Referring to the Supreme Court judgment in Tofan Singh v. State of Tamil Nadu (2020), the Court noted that statements of co-accused recorded under Section 67 of the NDPS Act are inadmissible and that phone records alone do not satisfy the “reasonable grounds” test under Section 37 of the NDPS Act.

The Court also relied upon the Delhi High Court judgment in Vinay Dua v. State Government of NCT of Delhi, wherein it was held that WhatsApp chats and phone calls with co-accused are insufficient by themselves to deny bail under the NDPS Act.

The Bench ultimately held: “the accused-Petitioner is entitled to be granted bail, in that, the test of reasonable grounds to deny bail as per the rigour of Section 37 of the NDPS Act is not applicable to the case of the Petitioner herein.”

Conclusion

The High Court held that since no contraband had been recovered from the petitioner and the prosecution's case against him rested only on disclosure statements and call records, unsupported by recordings or transcripts, the statutory rigours under Section 37 of the NDPS Act were not attracted in the facts of the case.

Accordingly, the Court allowed the bail application and directed the release of the petitioner on bail subject to conditions including furnishing bail bonds, surrendering the passport, sharing mobile phone location with the SHO concerned, and refraining from influencing witnesses or tampering with evidence.

Cause Title: Abdul Rashid Kohli v. Union Territory of Jammu & Kashmir

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