Safiya Malik

The High Court of Jammu & Kashmir and Ladakh, Single Bench of Justice Sanjay Dhar, while allowing a bail application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), held that call detail records (CDRs) merely indicating contact between an accused and co-accused, without accompanying voice recordings or corroborative evidence, cannot by themselves establish involvement in an alleged offence under the NDPS Act. The case arose from a complaint filed by the Narcotics Control Bureau, Jammu, concerning alleged trafficking of narcotic drugs under Sections 8, 21, 22, and 29 of the Act. Finding reasonable grounds to doubt the petitioner’s guilt, the Court directed his release on bail with specified conditions.

The petitioner filed a bail application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) before the High Court of Jammu & Kashmir and Ladakh in relation to a case registered by the Narcotics Control Bureau (NCB), Zonal Unit Jammu, under Sections 8, 21, 22, and 29 of the NDPS Act. The prosecution alleged that, acting on secret information, NCB officials intercepted a passenger bus on 27 August 2024 and recovered 220 bottles of codeine-based cough syrup, 14,106 Spasmo Proxyvon Plus capsules, and 3,000 Alprazolam tablets from two individuals. Their statements recorded under Section 67 of the NDPS Act allegedly disclosed that the seized contraband had been supplied from Delhi and was to be delivered to the petitioner.

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The petitioner was apprehended on 2 September 2024, and his statement was recorded under the same provision, wherein he purportedly admitted involvement in receiving and selling narcotic substances. The investigation also included analysis of call detail records (CDRs), which indicated telephonic contact between the petitioner and co-accused before the seizure. Following completion of the investigation, a complaint was filed before the Principal Sessions Judge, Samba.

In his bail plea, the petitioner contended that no legally admissible evidence connected him to the alleged offence and that the case relied solely on confessional statements under Section 67, which were inadmissible. The respondents opposed the application, maintaining that the petitioner was involved in the illegal possession and conspiracy to traffic narcotic drugs in commercial quantity and that the statutory bar under Section 37 of the NDPS Act precluded his release. The Court examined the evidence, including the statements and CDRs, to determine whether reasonable grounds existed to grant bail under the NDPS Act’s special provisions.

Justice Sanjay Dhar observed that while considering bail in non-bailable offences, courts must assess “the nature and gravity of accusation, severity of punishment in the event of conviction, likelihood of the offence being repeated, reasonable apprehension of witnesses being influenced and danger of justice being thwarted by grant of bail.” He stated that for offences under the NDPS Act involving commercial quantity, Section 37 required the Court to be satisfied that there were “reasonable grounds for believing that the accused is not guilty of such offence and is not likely to commit any offence while on bail.”

The Court recorded that “the allegation against the petitioner is that he was acting in conspiracy with the co-accused, from whom commercial quantity of contraband drugs has been recovered by NCB officials... it is the case of the prosecution that this consignment of drug was to be delivered to the petitioner.”

On the admissibility of confessional statements, the Court observed: “The issue as to whether a statement made by an accused before NCB officials under Section 67 of the NDPS Act is admissible in evidence is no longer res integra.” Referring to the Supreme Court’s decision in Tofan Singh v. State of Tamil Nadu, it stated that “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... is not admissible in evidence.”

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Regarding the CDR evidence, the Court recorded: “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 Court concluded that there were “reasonable grounds to believe that the petitioner is not guilty of offences under Sections 8/21/22 & 29 of the NDPS Act.”

The Court  ordered that “the petitioner is admitted to bail subject to the following conditions: that he shall furnish two solvent sureties to the tune of Rs. 1,00,000/- each and personal bond of the like amount to the satisfaction of the learned trial Court; that he shall not make any attempt to contact or influence any of the prosecution witnesses during trial either physically or through any other mode; that he shall appear before the learned trial Court on each date of hearing; that he shall not indulge in any similar offence; and that he shall surrender his passport, if any, before the learned trial Court and shall not leave limits of UT of J&K without prior permission of the learned trial Court.”

“Anything said in the order shall not be taken as an expression of opinion on merits of the case. The petition stands disposed of.”

Advocates Representing the Parties

For the Petitioner: Mr. Mehtab Gulzar, Advocate; Mr. Murtaza Kamaal, Advocate
For the Respondents: Ms. Vishal Sharma, DSGI; Mr. Sumant Sudan, Advocate

Case Title: Sareed Ahmed Ganie v. Union of India & Anr.
Case Number: Bail App No. 21/2025
Bench: Justice Sanjay Dhar