Confession Before NCB Is Not Evidence: J&K High Court Grants Bail in Commercial Quantity NDPS Case, Citing Tofan Singh

“Once a confession under Section 67 of NDPS Act is inadmissible, call records alone can't prove guilt”— In a reportable judgment High Court of Jammu & Kashmir and Ladakh at Jammu granted bail to a man accused of conspiring to traffic commercial quantity narcotic drugs, after holding that the prosecution lacked admissible evidence and had relied mainly on inadmissible confessions under Section 67 of the NDPS Act and bare call data records (CDRs).

Justice Sanjay Dhar, allowing the bail application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, ruled that the bar under Section 37 of the NDPS Act was not attracted in the petitioner’s case because there were “reasonable grounds to believe that the petitioner is not guilty of the offences” and that he was “unlikely to commit a similar offence while on bail.”

The ruling is significant not only because it reaffirms the binding authority of the Supreme Court’s judgment in Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1, but also because it reinforces the principle that mere call detail records, without corroborative evidence, are insufficient to establish criminal conspiracy under the NDPS Act.

“Statements Under Section 67 Are Inadmissible After Tofan Singh; No Legal Basis to Keep Accused in Custody”

The Narcotics Control Bureau (NCB) had arrested the petitioner, Sareed Ahmed Ganie, in connection with Crime No. 15/2024 involving the seizure of a large drug consignment on 27 August 2024 from co-accused Zahoor Ahmad Shah and Mohammad Abas Bhat. The drugs allegedly included 221 bottles of Codeine syrup, 14,106 Spasmo Proxyvon Plus capsules, and 3,000 Alprazolam tablets—well above the commercial quantity threshold under the NDPS Act.

The prosecution alleged that the seized contraband was being transported from Delhi to Anantnag and was meant to be delivered to the petitioner. The entire case against him rested on:

1. Statements recorded under Section 67 of the NDPS Act by him and co-accused Zahoor Ahmad Shah; and
2. CDRs showing communication between the petitioner and other accused.

The High Court, however, observed that the evidentiary foundation of the case collapsed once Section 67 statements were excluded:

“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.” (Para 14)

Justice Dhar invoked the ruling in Tofan Singh, where a three-judge Bench of the Supreme Court held that statements made to officers under Section 67 of the NDPS Act are not admissible as confessions because such officers are “police officers” within the meaning of Section 25 of the Evidence Act.

“CDRs Without Voice, Chats or Recovery Can’t Establish Guilt”: Court Rejects CDR-Only Link in Conspiracy

After eliminating the Section 67 statements from consideration, the Court examined whether call detail records alone could sustain the accusation against the petitioner.

The NCB claimed that the petitioner was in contact with co-accused on 24 August 2024, just three days before the recovery. However, there were no voice recordings, no chats, and no seizure or delivery to or from the petitioner.

Rejecting the sufficiency of CDRs as sole evidence, the Court noted:

“CDR details showing contact between the petitioner and co-accused, without there being any voice recording... may not be sufficient to convict the petitioner for the offence.” (Para 15)

The Court concluded that the prosecution had not produced any other material that could connect the petitioner to the consignment or the conspiracy beyond these limited call records.

“Bar Under Section 37 Not Attracted When Reasonable Doubt Exists”: Court Finds No Previous Offence or Likelihood of Recidivism

The case involved commercial quantity contraband, which ordinarily invokes the strict bail conditions of Section 37 of the NDPS Act. However, the Court emphasized that even under Section 37, bail is permissible if the Court is satisfied on two counts:

1. There are reasonable grounds to believe that the accused is not guilty, and
2. He is not likely to commit any offence while on bail.

Finding that both conditions were satisfied in the petitioner’s case, the Court stated:

“There are reasonable grounds to believe that the petitioner is not guilty... thus he has been able to carve out a prima facie case for grant of bail.” (Para 16)

“The respondents have not placed on record any material to show that the petitioner has been involved in similar offences in the past.” (Para 17)

“Right to Liberty Cannot Be Denied in the Absence of Admissible Evidence”: High Court Imposes Strict Bail Conditions

While granting bail, the Court imposed specific safeguards to ensure the integrity of the ongoing trial. The conditions included:

• Execution of two solvent sureties of ₹1,00,000 each,
• No contact with prosecution witnesses or attempt to influence them,
• Mandatory appearance before the trial court on each hearing date,
• No commission of similar offences,
• Surrender of passport, and
• Prohibition on leaving the Union Territory of Jammu & Kashmir without court’s permission.

The Court made it clear that:

“Anything said in the order shall not be taken as an expression of opinion on merits of the case.” (Para 19)

Judicial Scrutiny Must Rise Above Suspicion—Proof Must Be Legal and Substantive

The High Court’s ruling reasserts the fundamental safeguards under criminal law, particularly in cases under the NDPS Act, which involve stringent statutory presumptions and procedural bars.

By reaffirming that “inadmissible confessions cannot sustain a prosecution”, and that “mere suspicion based on call data is not evidence”, the Court has emphasized that the right to personal liberty under Article 21 cannot be suspended on procedural shortcuts or investigative assumptions.

The judgment is also a reminder to enforcement agencies that once an FIR moves from the investigative to the adjudicative phase, the standards of evidence and procedure must strictly conform to constitutional mandates.

Date of Decision: 18 October 2025