The Jammu & Kashmir and Ladakh High Court has clarified that in cases under the NDPS Act, bail cannot be denied solely on the basis of call records and uncorroborated disclosures by co-accused, even when commercial quantities of narcotics are involved. This ruling reinforces the stringent evidentiary threshold required under Section 37 of the NDPS Act and offers critical guidance for bail applications in drug-related conspiracies.
Background & Facts
The Dispute
The petitioner, Abdul Rashid Kohli, is accused in FIR No. 17/2023 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 of the Indian Penal Code. The case involves the alleged smuggling of heroin from Pakistan-occupied Kashmir into India, with a commercial quantity recovered from co-accused. The petitioner, however, was not found in physical possession of any contraband.
Key Facts
- On 06.04.2023, police received intelligence about drug dealings at Kursoo Bund, Rajbagh, Srinagar.
- A search of a rented house revealed 11 polythene packets of heroin weighing 11 kg total, hidden under a bed.
- Rs. 11,82,500 in cash was seized from the same location.
- Two mobile phones were seized from Accused Nos. 1 and 2, with call detail records (CDRs) linking them to the petitioner.
- The petitioner’s name was disclosed by Accused Nos. 1 and 2 during voluntary statements recorded before a Magistrate under Section 67 of the NDPS Act.
- The petitioner’s mobile phone (IMEI not recovered) was not seized; no voice recordings or transcripts of calls were produced.
- The petitioner was arrested on 07.04.2023 and has been in custody since then.
- No contraband, cash, or incriminating material was recovered from the petitioner’s person or residence.
- The petitioner is alleged to have shared his location via mobile with co-accused and communicated via WhatsApp.
Procedural History
- 06.04.2023: FIR No. 17/2023 registered at Police Station Rajbagh, Srinagar.
- 07.04.2023: Arrest of petitioner and other co-accused.
- 09.09.2023: Charge sheet filed before the Special Judge (NDPS), Srinagar.
- 12.10.2023: Charges framed against the petitioner under Sections 8/21/29 NDPS Act and Section 201 IPC.
- 05.08.2025: Trial Court rejected the petitioner’s bail application, citing Section 37 of the NDPS Act and the gravity of cross-border smuggling.
- 18.04.2026: Bail Application No. 194/2025 reserved for judgment.
- 29.04.2026: Judgment pronounced by the High Court.
The Parties' Positions
Petitioner’s Position: The petitioner contends that he was never found in possession of any contraband, no direct evidence links him to the conspiracy, and the only basis for his inclusion is uncorroborated disclosures by co-accused and call logs. He argues that Section 37 of the NDPS Act does not apply to him as there is no material to establish reasonable grounds for believing he committed the offence.
Respondent’s Position: The State argues that the petitioner was part of a cross-border conspiracy involving commercial quantities of heroin, that his mobile phone records show communication with co-accused, and that his proximity to the international border and the societal harm caused by drug trafficking justify denial of bail.
Relief Sought
The petitioner seeks bail on the grounds of prolonged incarceration of over three years, absence of direct evidence against him, and failure of the prosecution to meet the threshold under Section 37 of the NDPS Act.
The Legal Issue
Can the rigors of Section 37 of the NDPS Act be invoked to deny bail to an accused who was not in possession of any contraband, where the sole evidence linking him to the conspiracy consists of disclosure statements by co-accused and unverified call detail records without transcripts or voice recordings?
Arguments Presented
For the Petitioner
The petitioner’s counsel, Mr. S. T. Hussain, argued that Section 37 of the NDPS Act requires the court to be satisfied that there are reasonable grounds to believe the accused is guilty. Mere association through mobile calls, without any corroborative evidence such as voice recordings, financial trails, or recovered incriminating material, cannot satisfy this test. He relied on Tofan Singh v. State of Tamil Nadu to contend that statements under Section 67 of the NDPS Act are inadmissible as substantive evidence. He further cited Vinay Dua v. State (NCT of Delhi) to argue that WhatsApp chats and call logs alone are insufficient to deny bail.
For the Respondent
The State, through Mr. Faheem Nisar Shah, contended that the petitioner was part of a large-scale cross-border conspiracy involving commercial quantities of heroin. The disclosure statements of co-accused, combined with CDRs placing the petitioner in communication with the main accused, were sufficient to invoke Section 37. The State emphasized the societal harm caused by drug trafficking and the petitioner’s proximity to the international border as grounds for denying bail.
The Court's Analysis
The Court undertook a meticulous review of the evidentiary record and the statutory framework under Section 37 of the NDPS Act. It noted that while the offence involved a commercial quantity of heroin, the petitioner was not found in possession of any contraband, cash, or incriminating material. The prosecution’s case against him rested entirely on two pillars: (1) disclosure statements made by co-accused under Section 67 of the NDPS Act, and (2) call detail records from mobile phones seized from others.
"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 voice recording or transcripts of the conversation."
The Court emphasized that Section 37 imposes a high threshold: the court must be satisfied that there are reasonable grounds to believe the accused is guilty. It held that disclosure statements under Section 67 are not admissible as substantive evidence under Tofan Singh, and that CDRs alone, without context, transcripts, or corroboration, cannot establish participation in a criminal conspiracy.
The Court distinguished this case from those where physical possession, recovered contraband, or financial transactions directly link the accused to the offence. It further noted that the prosecution had not produced any evidence of the petitioner’s involvement in the transportation, sale, or financing of the drugs beyond the bare assertion of co-accused.
"The test of reasonable grounds to deny bail as per the rigor of Section 37 of the NDPS Act is not applicable to the case of the Petitioner herein."
The Court also rejected the argument that the gravity of the offence or the petitioner’s location near the border could substitute for evidentiary proof under Section 37. It reiterated that bail jurisprudence under the NDPS Act must be guided by statutory mandates, not general societal concerns.
The Verdict
The petitioner succeeded. The High Court allowed the bail application and directed the petitioner’s release on bail subject to the following conditions: (i) execution of a personal bond of Rs. 50,000 with a like surety; (ii) surrender of passport if held; (iii) furnishing his active mobile number to the SHO; (iv) daily sharing of Google pin location with the SHO; (v) no unlawful conduct prejudicing the trial; and (vi) no contact with prosecution witnesses. The Court clarified that this order does not express any opinion on the merits of the case.
What This Means For Similar Cases
Call Logs Alone Cannot Satisfy Section 37
- Practitioners must now argue that CDRs without voice recordings, transcripts, or corroborative evidence cannot meet the "reasonable grounds" standard under Section 37.
- Bail applications should highlight the absence of direct evidence linking the accused to possession, transportation, or financial transactions.
Disclosure Statements Are Not Substantive Evidence
- Statements under Section 67 of the NDPS Act cannot be used as standalone proof of conspiracy.
- Courts must scrutinize whether such disclosures are independently corroborated by material evidence.
Proximity to Border Is Not a Substitute for Evidence
- Geographic location near international borders cannot be invoked to deny bail without concrete evidence of involvement.
- Societal harm arguments must be balanced against statutory bail thresholds.
Burden of Proof Remains on Prosecution
- The burden to establish reasonable grounds under Section 37 lies squarely on the prosecution.
- Mere allegations or suspicion, however grave, are insufficient to override the right to bail.
Strategic Takeaway
In NDPS bail applications, focus on: (1) absence of possession, (2) lack of corroborated communication evidence, and (3) failure to meet the Section 37 threshold. Cite Tofan Singh and Vinay Dua to reinforce that call logs and disclosures are not enough.
