Law Web: J & K HC: CDRs Without Voice Evidence Insufficient To Connect Co-Accused in NDPS Case

The only material that connects the petitioner to the

alleged crime that is left is the CDR which has been collected by

the investigating agency during the investigation of the case. As

per analysis of the CDR, it appears that the petitioner was in

touch with the co-accused during the relevant period. The

question arises as to whether the same would be sufficient to

prima facie hold that the petitioner guilty of having committed the offence for which he has been booked. In the opinion of this

Court, 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. {Para 15}

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

Case No. Bail App No. 21/2025

Sareed Ahmed Ganie Vs UOI and anr.

Coram: HON’BLE MR. JUSTICE SANJAY DHAR,

Pronounced on: 18.10.2025.

1. The petitioner, through the medium of present petition

has invoked jurisdiction of this Court under Section 483 of BNSS

for grant of bail in a case arising out of Crime No. 15/2024 dated

27.08.2024 for offences under Sections 8/21/22/29 of NDPS Act

registered with NCB Zonal Unit, Jammu.

2. As per case of prosecution, on 26.08.2024 at about 1900

hours, a secret information was received by officials of NCB,

Jammu from a reliable source to the effect that two persons

namely Zahoor Ahmed Shah and Mohammad Abas Bhat are

travelling from Jammu to Delhi in a passenger bus bearing

registration No. HR38B898 along with huge quantity of narcotic

drugs and that the bus will pass from Zamindara Dhaba, Ring

Road between 0500 hrs. to 900 hrs. on 27.08.2024. On the basis

of this information, a team of NCB officials reached the spot and

at about 0630 hrs, on 27.08.2024, bus bearing registration No.

HR 38B8986 was seen coming from Zamindara Dhaba, Ring

Road. The said bus was signaled to stop by NCB officials and

upon questioning of the passengers, one person identified himself

as Zahoor Ahmad Shah and another passenger disclosed his

name as Mohammad Abas Bhat. Both persons were subjected to

search and upon questioning, they disclosed that they are

travelling with a cardboard box in which bag containing drugs

has been kept.

3. From the possession of accued-Zahoor Ahmad Shah and

Mohammad Abas Bhat, NCB officials recovered 220 bottles

containing 100 ml. each of Triprolidine Hydrochloride and

Codeine Phosphate Syrup, 14106 Spasmo Proxyvon Plus

Capsules, 3000 tablets of Alprazolam. Besides this, four red

coloured bottles filled with Codeine Syrup were also recovered.

The recovered drugs were sealed in different lots on spot

whereafter, statement of accused Zahoor Ahmed Shah under

Section 67 of the NDPS Act was recorded. In his statement

recorded under Section 67 of NDPS Act, accused Zahoor Ahmad

Shah disclosed that the seized contraband was supplied to him

by Mohd. Shahbaaz at Jama Masjid Gate No. 1, Delhi on

26.08.2024 and he was about to deliver the seized contraband to

Sareed Ahmad Ganie, the petitioner herein. It was further

disclosed by the accused Zahoor Ahmad Shah that he along with

the petitioner were about the sell the seized contraband in

Anantnag. After recording the statement of Zahoor Ahmed Shah,

he was subjected to arrest and thereafter, statement of accused

Mohammad Abas Bhat under Section 67 of the NDPS Act was

recorded. He also admitted that he is accompanying with Zahoor

Ahmad Shah in connection with transportation of the seized

contraband drugs. He further admitted that seized contraband

drugs were supplied by Mohd. Shahbaaz. Accused Mohammad

Abas Bhat was also arrested thereafter.

4. The seized contraband which was sealed in different lots

was produced before the Chief Judicial Magistrate, Samba and

samples were drawn from these lots which was sealed and sent to

the laboratory at New Delhi for chemical analysis.

5. The petitioner-Sareed Ahmed Ganie was apprehended by

NCB officials on 02.09.2024 and his statement under Section 67

of the NDPS Act was recorded. In his statement, the petitioner

admitted his guilt of receiving and selling of narcotic drugs and

psychotropic substances along with accused Zahoor Ahmad

Shah. He was also subjected to arrest. Thereafter, statement of

accused Mohd. Shahbaaz under Section 67 of the NDPS Act was

also recorded. He also admitted his guilt of being in league with

Zahoor Ahmed Shah and Mohammad Abas Bhat. Accused Mohd.

Shahbaaz was arrested on 09.09.2024

6. Thereafter, five mobile phones recovered from the

aforenamed accused persons were seized and sent to FSL

Chandigarh for data extraction regarding payment details, chats,

text messages. The report is stated to be still awaited. Upon

analysis of the call details of the mobile numbers that were used

by the accused persons, it was found that the accused were in

constant touch with the petitioner who was using mobile cell

phone No. 9596550485 which is registered in his name. It was

found that all the accused were in contact with each other on

24.08.2024 at 08.35.43 in connection with illegal trafficking of

drugs.

7. The investigating agency has concluded that accused

Zahoor Ahmad Shah contacted accused Mohd. Shahbaaz for

procurement of seized contraband and Mohammad Abas Bhat

associated Zahoor Ahmad Shah for carrying the seized

contraband and petitioner Sareed Ahmed Ganie contacted Zahoor

Ahmad Shah for procurement of seized contraband. The

investigating agency further concluded that the accused Zahoor

Ahmad Shah and Mohammad Abas Bhat were carrying 221

bottles of codimust –T codeine based cough syrup, 14106 spasm

proxyvon plus capsules and 3000 Calmpik, 0.5 mg. Alprazolam

from Delhi to Anantnag and they were intercepted by team of

NCB Jammu on 27.08.2024. It was also found that the petitioner

is receiver of seized drugs and he has, besides violating Section 8

of the NDPS Act committed offences under Section 21, 22 and 29

of the NDPS Act.

8. After completion of the investigation, the respondent-

NCB filed complaint before the learned Principal Sessions Judge,

Samba (hereinafter referred to as “trial Court”) against the

petitioner and co-accused Zahoor Ahmad Shah, Mohammad Abas

Bhat and Mohd. Shahbaaz. Prior to filing of the complaint before

the learned trial Court during the phase of investigation, the

application of the petitioner for grant of bail was rejected by the

trial Court vide order dated 31.12.2024.

9. The petitioner has sought bail in his favour on the

grounds that the complaint has now been filed against him and

there is no legally admissible material collected by the

investigating agency to connect the petitioner with the alleged

crime. It has been contended that the petitioner has no link with

the other accused persons named in the crime and he has been

implicated only on the basis of his statements recorded under

Section 67 of the NDPS Act and the statement of co-accused

recorded under the same provisions, which are not admissible in

evidence.

10. The respondents have contested the bail application by

filing their reply to the petition in which they have submitted that

the petitioner is involved in offence relating to possession of

commercial quantity of narcotic drugs and therefore, he does not

deserve any leniency. It has been submitted that in view of the

bar created under Section 37 of the NDPS Act, the petitioner

cannot be enlarged on bail at this stage particularly when there is

material on record to suggest that he is involved in the alleged

crime.

11. I have heard learned counsel for the parties and perused

the record including record of the trial Court.

12. So far as grant of bail in a non-bailable offence is

concerned, the principles with regard to same are more or less

settled. The factors like prima-facie or reasonable ground to

believe that the accused has committed the offence, the nature

and gravity of accusation, severity of the punishment in the event

of conviction and danger of the accused absconding or fleeing if

released on bail, character, behaviour, means, position and

standing of the accused, likelihood of the offence being repeated,

reasonable apprehension of the witnesses being influenced and

danger of justice being thwarted by grant of bail are required to

be considered by a Court while granting bail in non-bailable

offences. However, when it comes to offences under NDPS Act, if

the recovery of the contraband substance falls in the commercial

quantity, then besides the aforesaid factors, at the time of

considering the prayer for grant of bail of the accused, the Court

is also required to factor in the provisions contained in Section 37

of the NDPS Act. As per the provisions contained in the said

Section, before releasing an accused on bail, the public

prosecutor has to be given an opportunity to oppose the

application and the Court has to be 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 and that

he is not likely to commit any offence while on bail.

13. In the light of the aforesaid legal position, let us now

advert to the facts of the present case. 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 on 27.08.2024, when accused Zahoor

Ahmad Shah and Mohammad Abas Bhat were travelling in a bus

from Delhi towards Jammu. It is case of the prosecution that this

consignment of drug was to be delivered to the petitioner. To

connect the accused from whose possession the consignment of

contraband drugs has been recovered with the petitioner, the

prosecution relies upon statement of co-accused Zahoor Ahmad

Shah recorded under Section 67 of the NDPS Act and the

statement of the petitioner recorded under the same provision by

the officials of NCB wherein, both of these accused have admitted

that the seized contraband drugs were meant to be delivered to

the petitioner. The other circumstance on which the prosecution

is relying upon is Call Data Records of the accused, according to

which, the petitioner was in constant touch with the co-accused

particularly on 24.08.2024, a few days prior to the recovery of the

consignment of contraband drugs.

14. 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. The Supreme

Court has in a three Judge Bench judgment delivered in the case

of Tofan Singh Vs. State of Tamil Nadu; (2021) 4 SCC 1 held

that the confessional statement recorded under Section 67 of the

NDPS Act by NCB officials will remain inadmissible in the trial of

an offence under the NDPS Act. 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. It has

been clearly held by the Supreme Court that the confessional

statement made by the accused/co-accused before the NCB

official is inadmissible evidence. Thus, the statements of the

petitioner and accused Zahoor Ahmed Shah cannot be considered

while determining the issue relating to involvement of the

petitioner in the alleged crime.

15. The only material that connects the petitioner to the