J&K High Court: Call Records Alone Insufficient to Connect Accused in NDPS Cases, Bail Granted

Srinagar, J&K – In a significant ruling that reinforces the evidentiary threshold in narcotics cases, the Jammu and Kashmir and Ladakh High Court has held that mere call detail records (CDRs) showing contact between an accused and co-accused are insufficient, on their own, to establish a connection with a drug trafficking offence under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985.

The Court, presided over by Justice Sanjay Dhar, granted bail to an accused, Sareed Ahmad Ganie, after observing that in the absence of voice recordings or other corroborative evidence, CDRs cannot serve as the sole material to deny bail, especially when the other primary evidence—a confessional statement—is inadmissible. This judgment underscores the judiciary's increasing scrutiny of circumstantial evidence in cases governed by the stringent bail conditions of Section 37 of the NDPS Act.

Background of the Case: A Narcotics Intercept and Subsequent Allegations

The case, titled Sareed Ahmad Ganie v. Union of India & Anr. , originated from an operation by the Narcotics Control Bureau (NCB), Zonal Unit, Jammu. Acting on a secret tip, NCB officials intercepted a passenger bus traveling from Jammu to Delhi and apprehended two individuals, Zahoor Ahmad Shah and Mohammad Abas Bhat. The search yielded a commercial quantity of narcotics, including 220 bottles of Codeine Phosphate syrup, 14,106 Spasmo Proxyvon Plus capsules, and 3,000 Alprazolam tablets.

During their interrogation, the apprehended individuals allegedly disclosed that the contraband was supplied by one Mohammad Shahbaaz in Delhi and was intended for delivery to the petitioner, Sareed Ahmad Ganie, in Anantnag. The prosecution's case was built on two main pillars: first, the confessional statements of the co-accused and the petitioner himself, recorded under Section 67 of the NDPS Act, implicating Ganie; and second, an analysis of CDRs which purportedly showed that Ganie was in "constant touch" with the other accused around the time of the offence.

Following his arrest, Ganie's initial bail application was rejected by the Principal Sessions Judge, Samba, on December 31, 2024. This prompted him to approach the High Court, seeking relief under Section 483 of the recently enacted Bharatiya Nagarik Suraksha Sanhita (BNSS).

Arguments Before the High Court: The Clash Over Admissibility and Sufficiency

The petitioner's counsel launched a two-pronged attack on the prosecution's case. The primary argument centered on the inadmissibility of the confessional statements. Citing the landmark Supreme Court judgment in Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1 , the counsel argued that any statement recorded by an NCB officer under Section 67 of the NDPS Act is barred from being used as evidence. The Supreme Court had authoritatively held that such officers are "police officers" for the purposes of Section 25 of the Evidence Act, making confessions made to them inadmissible.

With the confessional statements rendered legally invalid, the petitioner’s counsel contended that the prosecution's case against Ganie rested solely on the CDR analysis. It was argued that these records, which only demonstrated communication without revealing the content of the conversation, could not, by any stretch of legal imagination, establish complicity in a criminal conspiracy for drug trafficking.

Conversely, the respondents, represented by the Deputy Solicitor General of India (DSGI), vehemently opposed the bail plea. They emphasized that the recovery involved a commercial quantity of narcotics, thereby invoking the rigorous twin conditions for bail under Section 37 of the NDPS Act. Section 37 mandates that a court cannot grant bail unless it is satisfied that there are "reasonable grounds for believing that he is not guilty of such offence" and that "he is not likely to commit any offence while on bail." The prosecution asserted that the chain of circumstances, including the CDR evidence, was sufficient to suggest the petitioner's deep involvement in the illicit trafficking network, thus failing to meet the Section 37 test.

Court's Analysis: Upholding Tofan Singh and Scrutinizing CDR Evidence

Justice Sanjay Dhar began his analysis by reiterating the settled law on bail under the NDPS Act, particularly the high bar set by Section 37. The Court then meticulously dismantled the evidence presented by the prosecution.

On the Inadmissibility of Section 67 Statements:

The Court unequivocally endorsed the petitioner's reliance on the Tofan Singh precedent. Justice Dhar observed that the Supreme Court's pronouncement was the final word on the matter, rendering any confession made to an NCB official inadmissible.

“Therefore, any statement made by accused Zahoor Ahmad Shah under Section 67 of the NDPS Act implicating the petitioner or any statement made by the petitioner implicating himself before the officials of NCB in terms of Section 67 of the NDPS Act is not admissible in evidence,” the Court held.

This finding effectively removed the primary evidentiary pillar of the prosecution's case against Sareed Ahmad Ganie, leaving only the CDRs.

On the Sufficiency of Call Detail Records:

The core of the judgment lay in the Court's assessment of the CDR evidence. The High Court opined that while CDRs could be a useful tool in investigations, they are not a substitute for substantive evidence of a crime. The mere fact that the petitioner was in contact with the co-accused, without any knowledge of what was discussed, was deemed insufficient to link him to the specific consignment of narcotics.

“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,” Justice Dhar remarked.

The Court reasoned that such evidence, in isolation, only raises a "grave suspicion" but does not meet the standard of "reasonable grounds to believe" that the accused is not guilty, as required by Section 37.

Conclusion: A Prima Facie Case for Bail

Having determined that the only legally admissible evidence against the petitioner was the CDRs, which were insufficient on their own, the Court concluded that the first condition of Section 37 was satisfied.

“In view of the aforesaid nature of material on record against the petitioner, it can safely be stated that there are reasonable grounds to believe that the petitioner is not guilty of offences under Sections 8/21/22 & 29 of the NDPS Act. Thus, he has been able to carve out a prima facie case for grant of bail,” the judgment stated.

Furthermore, the Court noted that the prosecution had failed to produce any material suggesting the petitioner's involvement in previous similar offences or any apprehension that he was likely to reoffend if released. With both conditions under Section 37 prima facie satisfied, the High Court allowed the bail application, setting aside the trial court's earlier order.

This decision serves as a crucial reminder for investigative agencies and prosecutors that reliance on inadmissible confessions and weak circumstantial evidence will not withstand judicial scrutiny, even in serious offences under the NDPS Act. It reinforces the principle that the stringent provisions for bail cannot be used to justify continued incarceration based on suspicion alone, and that the liberty of an individual can only be curtailed on the basis of legally tenable and sufficient evidence.