SRINAGAR: The Jammu Kashmir and Ladakh High Court has upheld a trial court order rejecting an application seeking continuous audio-video recording of the custodial interrogation of an accused in a narcotics case, holding that Section 105 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) does not confer an unconditional right to have every interrogation recorded.
However, the High Court clarified that the investigating agency remains bound to comply with statutory requirements governing the audio-video recording of searches and seizures and the Supreme Court’s directions on the installation, maintenance and preservation of CCTV footage in police stations.
Justice Sanjay Parihar, while dismissing a petition filed by Manzoor Ahmad Banday, observed that an accused could not insist upon continuous audio-video recording of interrogation merely on the basis of an apprehension of false implication or possible coercion, without placing supporting material before the court.
The court, however, emphasised that the absence of a statutory requirement to record every interrogation did not dilute the police’s obligation to record search and seizure proceedings wherever Section 105 of the BNSS applied.
“The petitioner cannot invoke Section 105 of the BNSS as an independent source of an unconditional right to demand continuous audio-video recording of his interrogation,” the court observed.
The order was pronounced on October 31, 2026, in CRM(M) No. 914/2026. The petitioner was represented by advocate Aazim Mushtaq Pandith, while no counsel’s appearance for the respondents was recorded in the order.
Banday had approached the High Court challenging an October 24 order of the trial court, which had dismissed his application under Section 175(3) of the BNSS.
Through the application, he had sought directions for audio-video recording of his custodial interrogation, preservation of CCTV footage relating to his alleged arrest and subsequent custody, and compliance with Section 105 of the BNSS in the event of any search or seizure during further investigation.
According to the petitioner, police took him into custody on October 20, 2026, in the presence of his wife and other family members. He alleged that the police attempted to attribute a recovery of contraband to him at the time of his apprehension but refrained from doing so after his family members raised objections.
He further alleged that despite being apprehended on October 20, the police showed his arrest on October 21 at PDD Colony, Baramulla.
Expressing apprehension that the investigating agency might fabricate a recovery or obtain an incriminating disclosure through coercive methods, he sought judicial directions to ensure transparency in the investigation.
The trial court had rejected the application, observing that Section 105 of the BNSS did not envisage continuous audio-video recording of every interrogation conducted by the investigating agency. It had also held that an accused could not dictate the manner in which evidence should be collected or require the court to supervise the ordinary course of investigation merely by raising allegations of false implication or claiming an alibi.
Challenging that decision, the petitioner’s counsel argued before the High Court that the trial court had failed to appreciate the purpose of statutory safeguards governing criminal investigations and the binding directions issued by the Supreme Court regarding CCTV cameras in police stations.
Reliance was placed on judgments reported as AIR 2008 SC 907 and AIR 2021 SC 64.
The counsel submitted that the responsibility of an investigating officer was not limited to collecting incriminating material to secure a conviction but also extended to conducting a fair, impartial and objective investigation aimed at discovering the truth.
It was argued that where an accused specifically apprehended fabrication of evidence or coercive interrogation, the court should not refuse protective directions merely because an accused could not dictate the course of investigation.
Examining the background of the case, the High Court noted that FIR No. 214/2025 had been registered at Police Station Baramulla under Sections 8, 21 and 29 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, following information about the transportation of narcotic substances in commercial quantities.
Acting on the information, a police party intercepted a vehicle bearing registration number JK05L-7844 at the GMC Parking Area in Baramulla.
During the search, 540 grams of heroin were allegedly recovered from Tahir Ahmad Khan and 424 grams from Sobia Bano.
The two accused subsequently allegedly disclosed during investigation that the contraband had been supplied to them by Mohammad Ubaid Raja, who was later arrested.
The investigating agency claimed that further leads obtained during Raja’s interrogation indicated the alleged involvement of Banday and another accused, Shahid Qayoom alias Sameer, in supplying the narcotic consignment for onward delivery and collection of money.
The police initially filed a charge-sheet against Tahir Ahmad Khan, Sobia Bano and Mohammad Ubaid Raja under Sections 8, 21 and 29 of the NDPS Act. Banday and the other co-accused had not been apprehended at that stage.
According to the investigating agency, Banday did not join the investigation despite the issuance of a notice under Section 67 of the NDPS Act and remained unavailable, prompting the police to seek judicial process to secure his presence.
Following his arrest, the Station House Officer concerned approached the competent court under Section 193(9) of the BNSS for permission to conduct further investigation into Banday’s alleged involvement. The permission was granted, after which he filed the application seeking protective directions.
Considering the rival submissions, Justice Parihar examined whether an accused could claim continuous audio-video recording of custodial interrogation as a statutory right under Section 105 of the BNSS and whether the Supreme Court’s directions on CCTV cameras in police stations provided an enforceable safeguard for preservation of relevant footage.
The court observed that investigation into cognisable offences ordinarily fell within the domain of the investigating agency, which was responsible for collecting evidence, examining witnesses and pursuing investigative leads.
However, it added that the discretion of the investigating agency was not absolute and that investigations had to be conducted fairly, reasonably and in accordance with law.
“An accused may not dictate the course of investigation, but is nevertheless entitled to insist that the investigation does not transgress the safeguards guaranteed by the Constitution and the applicable statutory provisions,” the court observed.
On Section 105 of the BNSS, the court held that the provision specifically dealt with audio-video recording of the process of search and seizure, including the preparation of seizure lists and their authentication by witnesses.
It said the provision could not be extended through interpretation to create a general statutory obligation to continuously record every question put to an accused or every answer given during custodial interrogation.
The High Court also examined the Supreme Court’s judgment in Paramvir Singh Saini v. Baljit Singh and Others, reported as AIR 2021 SC 64, which laid down directions concerning CCTV surveillance in police stations to protect the fundamental rights of persons subjected to arrest, detention and interrogation.
The court observed that the Supreme Court’s directions were binding and aimed at ensuring transparency and accountability in the exercise of police powers, particularly in circumstances involving deprivation of personal liberty.
It clarified that the obligation to install, maintain and operate CCTV systems in accordance with the Supreme Court’s directions was distinct from an accused’s demand for separate and continuous audio-video recording of every stage of interrogation.
The court further observed that where credible material disclosed custodial violence, coercion, tampering with recordings or a specific violation of legal safeguards, the competent forum could intervene and issue appropriate directions.
However, returning to the allegations raised by Banday, the High Court noted that he had not placed any independent material on record to substantiate his claim that police had attempted to plant contraband upon him.
It pointed out that neither an affidavit from his wife or any other family member, who were stated to have witnessed the alleged incident, nor any contemporaneous material supporting the allegation had been produced.
“The apprehension expressed by the petitioner, in the absence of supporting material, cannot by itself constitute sufficient ground for imposing a special regime of continuous judicial supervision over his interrogation,” the court observed.
The High Court also made it clear that the petitioner’s alleged failure to cooperate with the investigation or evasion of legal process could not deprive him of constitutional and statutory protections after arrest.
It said such conduct could be relevant to the investigation and other proceedings but could not justify coercive interrogation, unlawful detention or denial of procedural safeguards.
On the preservation of CCTV footage, the court observed that recordings relevant to allegations of custodial misconduct could assume significance, particularly where they were liable to be overwritten or destroyed.
However, it noted that the record did not establish whether CCTV cameras had been installed at the specific location where Banday claimed to have been apprehended or whether any footage of the incident had been recorded.
The court clarified that the investigating agency remained bound by the Supreme Court’s directions concerning CCTV surveillance within police stations, including the operation, maintenance and retention of recordings, irrespective of the outcome of the petition.
It further made clear that dismissal of the application did not authorise the investigating agency to destroy, suppress or tamper with any recording required to be maintained or preserved under law.
Finding no illegality, perversity or jurisdictional error in the trial court’s October 24 order, the High Court declined to interfere with it.
While dismissing the petition as devoid of merit, the court reiterated that Banday would remain at liberty to approach the competent forum if any specific violation of his constitutional or statutory rights occurred during the investigation.
It also clarified that its observations concerning his alleged involvement and the material collected during the investigation were confined to the adjudication of the present petition and would not influence the determination of the criminal case on its merits.
