Phone calls to drug accused not proof of conspiracy without voice recordings or transcripts: J&K High Court

The High Court of Jammu and Kashmir and Ladakh recently granted bail to a man accused of involvement with a heroin trafficking racket, holding that mere phone logs showing that he had called the prime accused were not enough to presume that he was involved in a drug smuggling conspiracy [Abdul Rashid Kohli v. Union Territory of Jammu and Kashmir]..Justice MA Chowdhary observed that such call detail records (CDRs), without additional evidence such as voice recordings or transcripts of the conversation between the accused, are not sufficient to establish the existence of a drug smuggling conspiracy. “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. 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," the judgment reads..The Court was dealing with a bail application was filed by one Abdul Rashid Kohli, a resident of Karnah, Kupwara, who was among those booked in a Narcotic Drugs and Psychotropic Substances Act (NDPS Act). In April 2023, the police had received information that two individuals, Sajad Ahmad Badana and Zaheer Ahmad Tanch, were dealing with illegal drugs at a rented place. A search operation led to the recovery of 11 kilograms of heroin and ₹11,82,500 in cash from the rented premises.During investigation, Badana disclosed that the narcotics were procured from a person named Nazir Bhai in Pakistan-occupied Kashmir (POK) and transported to Srinagar as part of a criminal conspiracy. He also named several persons allegedly part of the conspiracy, including Tanch, and Rashid. Based on these disclosures, several accused persons, including Rashid, were implicated for their alleged role in the procurement, transportation, and distribution of heroin.Rashid's bail application was earlier rejected by a trial court, prompting him to move the High Court for relief. The allegation against him was that he was part of the drug smuggling conspiracy, and that he had shared location details through phone, and remained in contact with co-accused through WhatsApp..The Court, however, noted that there was no drug recovery from him. The only evidence cited against Rashid was that there were CDRs to show that he had called the prime accused. The Court accepted Rashid's counsel argument that without any material to show what the content of the phone conversation was, these CDRs could be held up as evidence against him. Call logs alone are insufficient to establish a nexus with drug trafficking, the Court held. The High Court also cited the Supreme Court's ruling in Tofan Singh v. State of Tamil Nadu to observe that the statements of co-accused against a person are inadmissible if phone records are the only link. It further referred to the Delhi High Court ruling in Vinay Dua v. State government of NCT of Delhi to reiterate that mere WhatsApp chats and phone calls with co-accused are not enough to deny bail under the NDPS Act.The Court proceeded to grant Rashid bail.“Since, in the present case, the petitioner as an accused was not found in possession of any contraband material and the only evidence against him are the disclosure statements made by other co-accused, backed by phone logs, therefore, in the considered opinion of this Court, the accused-Petitioner is entitled to be granted bail, in that, 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 High Court observed..Senior Advocate ST Hussain, assisted by advocate Nida Nazi appeared for Rashid. The Union Territory of Jammu and Kashmir was represented by Government Advocate Faheem Nisar Shah and Senior Additional Advocate General Mohsin-ul-Showkat Qadri. .[Read Order]