In CRM-M-39657 of 2020-PUNJ HC- In absence of substantive material against accused in NDPS case, mere call records unaccompanied by transcript of conversations between co-accused not corroborative material: P&H HC Justice Vikas Bahl [06-04-2022]

Read Order: Vikrant Singh v. State of Punjab

Monika Rahar

Chandigarh, April 11, 2022: While dealing with an NDPS Act case where the State opposed bail plea of the accused on the ground of availability of call records between the petitioners and other co-accused based on whose disclosure statement the petitioners were arrayed as accused, the Punjab and Haryana High Court echoed the law propounded by Supreme Court and Gujarat High Court which says that without the transcript of the conversations exchanged between the co-accused, mere call details would not be considered to be corroborative material in absence of substantive material found against the accused.

By virtue of this order, the Bench of Justice Vikas Bahl disposed of three criminal miscellaneous applications filed under Section 439 Cr.P.C. for grant of regular bail in an FIR registered under provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). 

The case of the petitioners primarily was that the alleged recovery of contraband was effected from two persons (namely Rakesh Sharma and Ravdeep Singh @ Sheru) and not from the present petitioners. It was further contended that the petitioners were apprehended solely on the ground of a disclosure statement made by the above-named persons. It was also argued that even subsequent to the disclosure statement, no recovery was effected from the petitioners. Lastly, while submitting that the trial was going to take time owing examination of single prosecution witness out of the total 32, the Counsel sought grant of bail. 

On the contrary, the State Counsel opposed the present petition for regular bail while submitting that there were call details of conversations exchanged between the three petitioners and the two co-accused (Rakesh Sharma and Ravdeep Singh @Sheru, from whom the recovery was effected.

On the aspect of call records between the petitioner and the other accused, the Counsel for the the petitioner furnished a rebuttal which was to the effect that as per the affidavit and report under Section 173 Cr.P.C., there were no details regarding the date on which the alleged calls were exchanged and at any rate, there was no transcript of the said call details. Further, to substantiate this argument, the Counsel relied upon Narcotics Control Bureau Vs. Sandeep [P&H HC] and Yash Jayeshbhai Champaklal Shah Vs. State of Gujarat, [Gujarat HC], to contend that where there are no recordings of conversations exchanged between the accused, then the same cannot be treated as corroborative material in absence of substantive material found against the accused. 

Reliance was also placed on a judgment of the Supreme Court in Bharat Chaudhary Vs. Union of India, to argue that reliance placed on WhatsApp messages cannot be treated as sufficient material to establish a live link between the accused in the case when most of the scientific reports with respect to the said evidence are still awaited. 

The Court, at the very outset reiterated the undisputed facts of the matter as pleaded in the case advanced by the petitioner’s. Further, the Court also noted that the petitioners were behind bars since November 2020 and that in light of the 32 non-examined prosecution witness the Trial was going to be prolonged. 

Further, addressing the argument of the petitioner’s counsel on the non-availability of transcript of the call records, the Court opined that no dates on which the said calls were allegedly made by the co-accused to the petitioners or vice-versa were mentioned in the affidavit or in the report under Section 173 Cr.P.C. and that the transcript of the said conversations were not a part of the record under Section 173 Cr.P.C.

Thus, in view view of the law laid down by the Gujarat High Court in Yash Jayeshbhai Champaklal Shah and the Punjab and Haryana High Court in Narcotics Control Bureau Vs. Sandeep, which was to the effect that without the transcript of the conversations exchanged between the co-accused, mere call details would not be considered to be corroborative material in absence of substantive material found against the accused, the Court noted that in the present case there was no other material against the petitioners. 

Thus, keeping in view the above-said facts and circumstances, as well as law laid down in the judgments noticed herein above, the present petitions were allowed and the petitioners were ordered to be released on bail on their furnishing bail/surety bonds to the satisfaction of the concerned trial Court/Duty Magistrate and subject to their not being required in any other case.