NDPS Act- Mere Contacts With Co-Accused Not Corroborative Material In Absence of Substantive Material Found Against Accused: Gujarat High Court

Background

The Applicant primarily contended that barring the call records of the Applicant which showed that he had called around the time of offence, there was no evidence of the Applicant's interaction with the co-accused. Further, the material whatsapp chats were deleted from the devices of co-accused and were unavailable at the given time. Significantly, methamphetamine was recovered from the co-accused but nothing was retrieved from the possession of the Applicant or his premises at the time of arrest. The Applicant pointed to Section 29 of the Act of 1985 to contend that there was no conspiracy amongst the co-accused. Another accused had also been released and so on the ground of parity, the Applicant must be released. The Applicant relied on Bharat Chaudhary vs Union of India [2021 SCC OnLine SC 1235] to submit that the absence of any possession of contraband article and the print outs of whatsapp messages downloaded from the mobile phone were not sufficient material to establish live link between the co-accused and the Applicant.

Per contra, the Respondent-Authority submitted that the Applicant was in live contact with the co-accused from whom contraband was found. Additionally, the Applicant had ordered the contraband for delivery from the two accused. A further averment was that per Section 35 of the Act, there was a presumption of culpable mental state of the accused may be inferred from the whatsapp chat between the accused as well as call data records.

Judgement

Justice Trivedi's foremost observation was that the Applicant was not found in possession of any contraband article. The Court while dismissing the value of mere contacts with the co-accused as corroborative evidence, averred:

"However, screenshot of one of the whatsapp chat in between the co-accused shown to the Court, there is hardly anything which connects the applicant with the present offence or even asserting that he ordered for the same which were to be delivered by the accused found in possession of contraband."

Justice Trivedi noted that there was no criminal antecedent of the Applicant and no apprehension by the Prosecution that he would likely commit any offence on bail. Considering the Bharat Chadhuary precedent and the foregoing circumstances, the High Court granted bail to the Applicant on a personal bond of INR 15,000 with one surety. The following conditions were provided:

1. Not take undue advantage of liberty or misuse liberty
2. Not act in a manner injurious to the interest of the prosecution
3. Surrender passport
4. Not leave the India without prior permission of Sessions Judge
5. Mark presence before concerned police station once between 1^st and 5^th day for six months
6. Furnish latest and permanent address of residence and contact details

Accordingly, the Bail Applicant was allowed.

Case Title: YASH JAYESHBHAI CHAMPAKLAL SHAH Versus STATE OF GUJARAT

Case No.: R/CR.MA/1234/2022