Karnataka High Court
Dr Ish Middha vs The State Of Karnataka on 2 August, 2024
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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NC: 2024:KHC:30678
WP No. 16785 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO. 16785 OF 2024 (GM-RES)
BETWEEN:
DR. ISH MIDDHA
AGED 27 YEARS,
S/O DR.SUDHEER MIDDA,
R/AT JIT AND PAI X-RAYS,
TADI KHANA, SAGAR SARAI,
BUDDHA BAZAR,
MORADABAD,
UTTAR PRADESH - 244001.
...PETITIONER
(BY SRI. AKSHAY KUMAR JAIN.,ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THROUGH
MANGALORE
EAST POLICE STATION
Digitally signed by B
2. SUB INSPECTOR OF POLICE
K
MAHENDRAKUMAR
CITY CRIME BRANCH,
Location: HIGH MANGALORE CITY,
COURT OF
KARNATAKA
BOTH ARE REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE - 560001.
...RESPONDENTS
(BY SRI.M.R.PATIL, HCGP)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227
OF CONSTITUTION OF INDIA PRAYING TO QUASH ENTIRE
PROCEEDINGS IN SPL.C.NO. 5/2024 PENDING ON THE FILE OF
PRL. DISTRICT AND SESSIONS JUDGE, MANGALORE VIDE ANNX-G
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NC: 2024:KHC:30678
WP No. 16785 of 2024
AND DIRECT THE INVESTIGATING OFFICER TO RETURN ALL THE
ARTICLES SEIZED FROM THE PETITIONER, INCLUDING HIS
MOBILE PHONE, IPAD AS PER PF.NO. 27/2023 DATED 20.01.2023
VIDE ANNX-B ALSO HIS PASSPORT BEARING NO. M1283735 COPY
OF THE WHICH IS PRODUCED HEREWITH VIDE ANNX-E HANDED
OVER TO POLICE PURSUANT TO THE CONDITION IMPOSED IN
THE ORDER OF BAIL 31.01.2023 IN CRIME NO.2/2023 PASSED BY
PRL. DISTRICT AND SESSIONS JUDGE AT MANGALORE VIDE
ANNX-D.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
ORAL ORDER
The petitioner, accused No.11, who faces charges under Section 27(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985, is before this Court.
2. According to the prosecution's case, based on credible information, a raid was conducted with a search warrant from the Deputy Commissioner of Police, Crime Branch, Mangaluru. During the raid, a plastic cover containing contraband ganja was discovered under a table. Upon questioning the apartment's inhabitants, the petitioner revealed his identity and allegedly confessed to procuring ganja from Vishaka Pattana tribes. He admitted to packaging and selling quantities of 50 and 100 grams to college students and the public for financial gain.
3. The prosecution further relies on the confession statement of accused No.1, who purportedly confessed to supplying ganja to other accused persons for consumption.
-3-NC: 2024:KHC:30678 WP No. 16785 of 2024 Subsequently, these co-accused allegedly stated that the petitioner, accused No.11, also consumed ganja with them.
4. The Sub-Inspector of Police, CCB, Mangaluru, searched the petitioner-accused No.1's residence apartment, arrested him, and then took him to A J Institute of Medical Sciences Hospital, Mangaluru, for examination.
5. Furthermore, the prosecution contends that upon examination, it was found that the petitioner-accused No.11 had consumed ganja, thereby making him liable for offences under Section 27(B)(2) of the NDPS Act.
6. Learned senior counsel for the petitioner-accused No.11, argues that the urine sample taken from him was obtained in violation of Section 16 of the NDPS Act, 1984, as none of the prescribed procedures were followed. He further contends that the Inspector of Police failed to record in writing the information received from the co-accused, which is mandatory under Section 42(1) of the NDPS Act. Therefore, any breach of mandatory provisions under Section 42(1) of the NDPS Act would vitiate the trial.
7. In support of his argument, he cites the decision of the Hon'ble Supreme Court in State of Punjab vs. Balbir Singh - (1994) 3 SCC 299, Roy V.D. vs. State of Kerala - (2000) 8 SCC 590, and Najmunisha vs. State of Gujarat - 2024 SCC Online SC 520.
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8. On the contrary, the learned High Court Government Pleader argues that there was substantial compliance with Section 42(1) of the NDPS Act, and therefore, the trial remains valid. He asserts that the confession statement of accused No.1, combined with medical findings, clearly establishes his involvement in the offence under Section 27(b) of the NDPS Act. He further argues that the issues raised by the senior counsel can only be addressed during the trial and should not be considered in this petition, urging for its dismissal.
9. The submissions of both parties have been duly considered.
10. Initially, the FIR was registered against accused No.1 for offences under Sections 8(c) and 20(b)(ii)(B) of the NDPS Act. Following his apprehension, it was alleged that other accused persons had purchased ganja from him and subsequently consumed it with accused No.1. Based on information received from these co-accused, the Sub-Inspector of Police, CCB, Mangalore City, entered the premises where accused No.11 resided, conducted a search, and arrested him. He was then sent for medical examination by a police constable.
11. The urine sample drawn from accused No.11 during the examination at A J Institute of Medical Sciences Hospital, Mangaluru, reportedly tested positive for ganja. However, it is noted that this is a screening test, and all positive results should be confirmed by Gas Chromatography or Mass Spectrometry to -5- NC: 2024:KHC:30678 WP No. 16785 of 2024 establish conclusive proof, a matter to be determined during the full-fledged trial. Additionally, compliance with Section 42(1) of the NDPS Act is under scrutiny.
12. It is observed that the Sub-Inspector of Police, CCB, Mangalore City, failed to record the information received from the co-accused in writing, as mandated by Section 42(1) of the NDPS Act. The Hon'ble Supreme Court, in State of Punjab vs. Balbir Singh - (1994) 3 SCC 299, has held that any arrest or search conducted under a warrant issued by an unauthorized Magistrate or officer would be illegal, thus affecting the prosecution's case and vitiating the trial.
13. Referring to Roy V.D. vs. State of Kerala - (2000) 8 SCC 590, the Court emphasized that Section 482 of the CrPC should be invoked to prevent abuse of the legal process or to ensure justice. Initiation of criminal proceedings based on illicit material gathered through illegal searches or arrests not only compromises the validity of any conviction but also taints the entire trial process.
14. The decision in Chhunna alias Mehtab vs. State of Madhya Pradesh - (2002) 9 SCC 363, further elaborated on how explicit non-compliance with statutory requirements under the NDPS Act, 1985, can invalidate a trial.
15. Additionally, in the case of Ritesh Chakarvarti vs. State of M.P. - (2006) 12 SCC 321, the Apex Court underscored the importance of conducting searches under the supervision of a -6- NC: 2024:KHC:30678 WP No. 16785 of 2024 Magistrate or a Gazetted Officer, emphasizing that mere presence of a Gazetted Officer in the raiding team does not suffice to meet the requirements of Section 50 of the NDPS Act, 1985.
16. However, in State of Punjab vs. Baldev Singh - (1999) 6 SCC 172, the Supreme Court clarified that adherence to safeguards under Section 50 of the NDPS Act must be determined based on evidence presented during trial, and premature termination of proceedings is not permissible. Nonetheless, failure to comply with mandatory provisions of Section 42(1) of the NDPS Act would constitute an abuse of legal process.
17. It is evident that the information suggesting accused No.1's consumption of ganja was not recorded in writing as required by Section 42(1) of the NDPS Act, nor was it reported to a higher officer as per Section 42(2) of the same Act. Such non- compliance renders the search conducted and subsequent proceedings illegal. Therefore, continuation of criminal proceedings in this context would amount to an abuse of legal process.
18. The Hon'ble Supreme Court in the case of Tofan Singh (supra) while dealing with Section 67 of the Act at paras-66 and 68 has held as follows:
"66. This becomes even clearer when Section 52(3) of the NDPS Act is read. Under Section 52(3), every person arrested and article seized under Sections 41 to 44 shall be forwarded without unnecessary delay either to the officer in charge of the nearest police station, who must then proceed to "investigate" the case given to him, or to the officer empowered under Section 53 of the NDPS Act, which officer then "investigates" the -7- NC: 2024:KHC:30678 WP No. 16785 of 2024 case in order to find out whether an offence has been committed under the Act. It is clear, therefore, that Section 67 is at an antecedent stage to the "investigation", which occurs after the officer concerned under Section 42 has "reason to believe", upon information gathered in an enquiry made in that behalf, that an offence has been committed.
68. The consequence of accepting Shri Lekhi's argument flies in the face of the fundamental rights contained in Articles 20(3) and 21, as well as the scheme of the NDPS Act, together with the safeguards that have been set out by us hereinabove. First and foremost, even according to Shri Lekhi, a police officer, properly so called, may be authorised to call for information, etc. under Section 67, as he is an officer referred to in Section 42(1). Yet, while "investigating" an offence under the NDPS Act i.e. subsequent to the collection of information, etc. under Section 67, the same police officer will be bound by Sections 160-164 CrPC, together with all the safeguards mentioned therein -- firstly, that the person examined shall be bound to answer truly all questions relating to such case put to him, other than questions which would tend to incriminate him; secondly, the police officer is to reduce this statement into writing and maintain a separate and true record of this statement; thirdly, the statement made may be recorded by audio-video electronic means to ensure its genuineness; and fourthly, a statement made by a woman can only be made to a woman police officer or any woman officer. Even after all these safeguards are met, no such statement can be used at any inquiry or trial, except for the purpose of contradicting such a witness in cross-examination."
19. The interpretation derived from Section 67 of the NDPS Act, coupled with the legal principles established by the Hon'ble Supreme Court in the case of Tofan Singh (supra), -8- NC: 2024:KHC:30678 WP No. 16785 of 2024 emphasizes that Section 67(c) of the NDPS Act is solely intended for the purpose of gathering information to ascertain reasonable grounds for suspecting the commission of an offence.
20. In the present case, the statements attributed to the co-accused, allegedly confessing to consuming ganja with the petitioner, were recorded subsequent to the search and seizure. Therefore, the confession made by accused No.1 falls under Sections 25 and 26 of the Indian Evidence Act, rather than Section 67(c) of the NDPS Act. Without corroborative evidence substantiating the allegations against the petitioner, the prosecution cannot solely rely on an inadmissible confession statement to proceed against them.
21. Regarding the offence under Section 27(b) of the NDPS Act, which carries a penalty of simple imprisonment for up to six months, or a fine, or both, it should be noted that the petitioner spent approximately fifteen days in judicial custody.
22. Accordingly, I pass the following:
ORDER
i) The writ petition is allowed.
ii) The impugned proceedings in Spl.Case No.5/2024 pending on the file of the Principal Sessions and Special Judge, -9- NC: 2024:KHC:30678 WP No. 16785 of 2024 DK, Mangalore, insofar as it relates to the petitioner - accused No.11 is hereby quashed.
iii) The Investigating Officer to handover the passport of the petitioner bearing No.M1283735 seized to the petitioner forthwith.
Sd/-
(HEMANT CHANDANGOUDAR) JUDGE RHS