Karnataka High Court
Mr Vaibhav Gupta vs Union Of India on 24 January, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24 T H DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
WRIT PETITION NO.11193 OF 2021(GM-RES)
BETWEEN:
Mr. Vaibhav Gupta,
S/o Deepak Gupta,
Aged about 29 years,
R/at No.14/1, 2 n d Cross,
9 t h Main, Rajmahal Vilas Extension,
Sad ashivanag ar, Beng aluru-560008.
...Petitioner
(By Sri Hashmath Pasha, Senior Advocate for
Sri Nasir Ali, Advocate)
AND:
Union of India
Narcotic Control Bureau
Beng aluru Zonal Unit
Throug h its Intelligence officer
Beng aluru-560006.
(Represented by learned
Special Public Prosecutor)
...Respondent
(By Sri Mad hukar Deshp ande, Advocate)
This Writ Petition is filed under Articles 226 and
227 of the Constitution of India and und er Section 482
of the Cod e of Criminal Procedure, praying to quash
the proceedings in Spl.Case No.768/2021 pending on
the file of Hon'ble XXXIII Additional City Civil and
Sessions Judge and Sp ecial Judge for NDPS Cases,
Beng aluru, which is arising out Crime NCB file
No.48/1/20/2020/BZU on the file of respondent NCB,
:: 2 ::
Beng aluru for offences under Section 8(c), 21, 27 and
27A NDPS Act vide Annexure-A and B, as an abuse of
process of law and etc.
This Writ Petition coming on for preliminary
hearing in 'B' Group, this d ay, the Court mad e the
following:
ORDER
Shorn of the details, the factual background is as follows : -
The secret information received by an officer of Narcotic Control Bureau (for short referred to as 'NCB') on 17.12.2020 led to seizing a parcel bearing No. CC089254397NL at Foreign Post office, Chamarajpet, Bengaluru. The parcel contained 610 grams of MDMA pills. On 18.12.2020, the NCB received another secret credible information that an African national namely Ramla Shedafa Nancy, i.e., accused No.1 would be going to Sahakarnagar Post Office to enquire about the parcel bearing No. CC089254397NL, and based on this information, the NCB officer intercepted her first and then she :: 3 ::
showed another African namely Emmanuel Michael i.e., accused No.2 who was waiting outside the post office at Sahakarnagar. Thus both were brought to NCB office. They revealed that the parcel was addressed to accused No.1 though the telephone number mentioned on the parcel cover was that of accused No.2. An FIR came to be registered in Crime No. NCB FNo.48/1/20/2020. They confessed their crime when they were interrogated and then they were arrested and produced before the Special Court on 19.12.2020. During investigation they also revealed that they had booked another parcel bearing No. EG22836800ET for receiving cocaine and based on this information another team of NCB officers seized the parcel on 21.12.2020 containing 235 grams of powder which was said to be cocaine. When the house of accused No.2 was searched, the NCB officers seized one SBI Classic Visa Card bearing No.4591 6700 1041 7738 which was in the :: 4 ::
name of Mugwani Esther Amosi. When the details of the transaction made through this card were obtained from the bank, the NCB officers noticed many suspicious credit transactions having taken place in between the period 17.8.2017 and 26.10.2019 and those transactions were found to be made by the petitioner herein. Thus the petitioner was summoned, interrogated and taken to custody. He was arrayed as accused No. 3 in the above said FIR. After completion of the investigation, the NCB filed charge sheet which was registered in the court of XXXIII Additional City Civil and Sessions and Special Judge under NDPS Act, as Special Case 768/2021 for prosecuting the accused in relation to offences punishable under sections 8(c), 21, 27 and 27A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short hereinafter referred to as 'the NDPS Act'). The petitioner has sought a writ of certiorari for quashing the proceeding against him.
:: 5 ::
2. I have heard the arguments of Sri Hashmath Pasha, learned senior counsel for the petitioner and Sri Madhukar Deshpande, learned standing counsel for the respondent.
3. Sri Hashmath Pasha put forward certain factual aspects. He submitted that the petitioner who has been arrayed as accused No.3 in the charge sheet was born in an affluent family and had his education throughout in abroad. After returning to India, he joined his family company namely M/s Krishi Technology Private Limited. His mother Sunita Gupta resigned from Directorship of the company to accommodate the petitioner to become a Director. In January 2015, he became the Managing Director and Chief Executive Officer of the company. In the course of company's business, he came in contact with one Mr.Joseph who became his friend. One day Joseph took the petitioner to a bar at Indiranagar in Bengaluru and :: 6 ::
introduced to him an African national by name Emmanuel who gave the petitioner a little quantity of some substance for consumption. The petitioner consumed it and noticing a different kind of effect on his body and mind, he started taking it and ultimately became its addict. He did not disclose it to anybody in his family probably because of fear or shy. He was buying the substance from Emmanuel. In the beginning Emanuel used to sell the substance to the petitioner for a lesser price and as he came to know that the petitioner had become addict, he increased the price and started extracting more and more money. The petitioner used to transfer the money to Emmanuel from his personal bank account at HDFC. As the petitioner had become an addict to drugs and could not lead life without it, he used to go to depression and became restless. One day, on 5.10.2019, when he was walking on the street, he developed seizure and became :: 7 ::
unconscious. He fell down and sustained injuries. Somebody informed this to the petitioner's mother; she came to the spot and took him to Mallya Hospital for treatment where, it came to light that the petitioner was a drug addict.
3.1. Later on the petitioner was admitted to deaddiction center at Mallya Hospital and Vikram Hospital and he was also counseled by psychologists namely Sukanya, Meena Iyer and Cecil George. Ultimately the petitioner was deaddicted and the test report dated 12.3.2021 came negative for the consumption of any drug.
3.2. Giving the above background, Sri Hashmath Pasha submitted that prosecuting the petitioner for the offences punishable under sections 21, 27A of the NDPS Act is illegal and not at all justifiable. The prosecution relies upon the statement given by the petitioner under section 67 of the NDPS Act and in that statement he has no :: 8 ::
where stated that he was possessing, manufacturing, selling or purchasing the drugs and that he had indulged in financing either directly or indirectly any of the activities of trafficking the drugs or psychotropic substances. Section 21 deals with punishing a person who possess, sells, purchases, transports, etc., in contravention of the provisions of the NDPS Act and section 27A deals with punishing whoever indulges in financing or harboring the activities concerning illegal trafficking of the drugs. But, he has admitted to have consumed the drug and thereby only provision that can be invoked against him is section 27. In this regard, his further argument is that since the petitioner was an addict and that he underwent treatment for deaddiction, he is entitled to claim immunity from prosecution as envisaged in section 64A of the NDPS Act. He referred to medical records to show that the petitioner voluntarily underwent treatment for deaddiction in :: 9 ::
the recognized deaddiction centers. The treatment is over. The test report shows that he has been deaddicted fully. Now he is not consuming drug. In this view, Sri Hashmath Pasha argued that the petitioner is entitled to protection under section 64A of the NDPS Act. For all these reasons, the proceeding against the petitioner is to be quashed.
4. Sri Madhukar Deshpande argued that the petitioner was not merely an addict. He was found to have possessed the drugs. Section 27A consists of two parts, namely financing and harboring.
Here in this case the petitioner appears to have financed the illicit trafficking of the drugs. The materials collected by the investigating officer show that periodically he was making payment to accused No.2 who used to purchase the drugs for sale in Bengaluru and other places. Totally the petitioner has paid Rs.1,14,57,000/- to accused No.2 through the bank account of M/s Mugwani :: 10 ::
Esther Amosi. The bank statements confirm these transactions. This was nothing but financing.
4.1. His next point of argument was that according to section 64A, only that person who appears to have consumed small quantity of narcotic drugs or psychotropic substances is entitled to claim immunity from prosecution. In this case the petitioner consumed more than small quantity and therefore he cannot claim immunity. There are sufficient materials indicating the involvement of the petitioner in commission of the offences invoked against him and other accused in the charge sheet and therefore the petition cannot be allowed.
5. I have considered the points of arguments. Firstly, it is to be examined whether the materials on record indicate the involvement of the petitioner in commission of offences punishable under sections 21 and 27A of the NDPS :: 11 ::
Act. Section 8(c) is also invoked, but it is not a penal section. It only prohibits the production, manufacture, possession, sale, purchase, transport, consumption, etc. and violation of it becomes punishable.
6. The NCB officers came to know of purchases being made by the petitioner when he obtained the details of the bank transactions concerning the SBI Classic Visa Card that stood in the name of Mugwani Esther Amosi. Thereafter the petitioner was interrogated. Accused 1 and 2 were also subjected to interrogation and their statements were also recorded. The statements given by the petitioner and other two accused under section 67 of the NDPS Act during interrogation are the only materials for fixing the petitioner in relation to offences punishable under sections 8(c), 21, 27(a) and 27A of the NDPS Act.
If the statement given by accused No.2 Emanuel :: 12 ::
Michael is seen, so far as the petitioner is concerned, he has stated that he was selling cocaine to him and that he used to take cash from the petitioner in the beginning and when the quantity of buying increased, the petitioner started making online payment to the account of Mugwani Esther Amosi which the second accused was using. He might have stated that major part of the payment made by the petitioner was used by him for purchasing and obtaining drugs but, his statement does not indicate that the petitioner was providing the funds to the second accused for sustaining the illicit trafficking of the drugs. The statement of first accused does not indicate anything against the petitioner. Now if the statement of the petitioner is seen, what is forthcoming is that the second accused used to supply drugs for his consumption. To a specific question whether he had sold any drugs to any other person, he gave an answer that he never :: 13 ::
shared or sold drugs to anyone and that he used the drugs for himself. He has admitted to have made payment of Rs.1,14,57,000/- to the bank account of M/s Mugwani Esther Amosi and has also stated that he made all those payments for the cocaine he had purchased from accused No.2. Therefore the materials that the respondent collected during investigation do not indicate that the petitioner committed the offences punishable under section 21 or 27A. Mere making payment for the drugs purchased by the petitioner for his self consumption cannot be brought within the ambit of section 27A of the NDPS Act. Financing means funding for sustaining the illicit trafficking of the drugs. The person who funds may or may not consume the drugs but, the essential requirement is intention to sustain the illegal business. Merely for the reason that accused No.2 purchased the drugs from the payment made by the petitioner, it cannot be said that the petitioner :: 14 ::
funded accused No.2 to promote illicit trafficking in drugs and psychotropic substances. Since it is possible to arrive at this conclusion from the materials collected by the investigating officer, it may be stated that the petitioner could not have been charge sheeted for offences under sections 21 and 27A of the NDPS Act.
7. Then there remains the offence under section 27 in regard to consumption of drugs by the petitioner. Section 2(i) of NDPS Act defines the word 'addict' as a person who has dependence on any narcotic drug or psychotropic substances.
The petitioner admits to have consumed cocaine and that he became an addict to it. For this reason the petitioner has claimed immunity from prosecution according to section 64A of the NDPS Act. The learned counsel for the respondent Sri Madhukar Deshpande's argument is that since the petitioner has consumed large quantity of drug he :: 15 ::
cannot claim immunity. Immunity can be claimed under section 64A only by an addict who has consumed small quantity of narcotic drug. This argument of Sri Deshpande cannot be accepted because section 64A makes it very clear that immunity can be claimed not only by an addict who has consumed small quantity but, also by an addict who is charged with an offence punishable under section 27. But, the only rider is that the addict should voluntarily seek to undergo medical treatment for deaddiction from the hospital or an institution maintained or recognized by the Government or local authority and undergo the treatment process. The proviso further makes it clear that immunity may be withdrawn if the addict does not undergo complete treatment for deaddiction. Therefore immunity can be claimed even by an addict who has been prosecuted under section 27. It is to be noted that section 27 is not quantity specific and therefore immunity can be :: 16 ::
granted to an addict who is prosecuted for the offence under section 27 provided the other requirements are fulfilled.
8. The petitioner has stated very clearly that he underwent deaddiction treatment in the recognized hospitals and he was also counseled by the psychotherapists and psychologists. In this regard he has produced documents. The respondent does not dispute these documents which are sterling in nature. He was first admitted to Mallya Hospital when he fell down on the road on 5.10.2019. It was only thereafter the petitioner's family members came to know that he was a drug addict. He was admitted to Vikram Hospital. The bio-chemistry report dated 25.10.2019 shows that he tested positive for cocaine abuse. Another report dated 12.3.2020 shows that he tested negative for all types of drug abuses. In addition to these reports, the reports :: 17 ::
give by psychologists are also produced. The petitioner underwent counseling sessions in November and December 2019, January, February and March 2020. A psychotherapist by name Smt.Sukanya has noted the progress in the treatment. She has also given a certificate. There is another certificate issued by Smt. Meena Iyer, a life skills counselor, who has very clearly stated that she was happy to note that in those months he (Vaibhav Gupta) cleaned up and continued to be free of drugs. The certificate dated 8.6.2021 issued by Sri Cecil George, Chief Executive Officer and Chief Counselor also shows that Vaibhav Gupta is doing well in his recovery. All these documents clearly indicate that the petitioner underwent treatment for deaddiction from drugs voluntarily and that he is now completely free of drug addiction. Therefore the petitioner has placed materials in support of requirements envisaged under section 64A of the NDPS Act.
:: 18 ::
9. As the documents indicate that the petitioner is not consuming drugs now and that he has been completely deaddicted, should he be prosecuted is the question. Section 64A clearly states that an addict who has undergone treatment shall not be liable to prosecution under section 27 or for any other offences involving small quantity.
The word 'or' is important, it is not that only the consumer of small quantity can claim immunity. That means if the addict has taken treatment for deaddiction, he cannot be prosecuted at all. Any further proceedings against him in relation to offence under section 27 amounts to abuse of process of court. Sri Hashmath Pasha has referred to a judgment of the Madras High Court in Sanjiv Bhatnagar vs State [Criminal Revision Case No. 1278/2015] where an observation as under
appears to be pertinent.
"11. Given the attendant facts and circumstances, the prosecution in the :: 19 ::
instant case may at best be able to make out an offence under Section 27 of NDPS Act. The question that arises for consideration would be whether the accused should be required to undergo trial towards his conviction for offence under Section 27 of NDPS Act and would he only thereafter be entitled to seek the benefit of Section 64(A) of NDPS Act. Simply put, Section 64(A) of NDPS Act is one intended to rid an user of drugs from the evil thereof and towards his rehabilitation, the end object being to facilitate a life free of drugs. This Court is of the view that when the material gathered by the prosecution itself informs the petitioner to be an user of drugs and not in too large a quantity the provision for rehabilitation should be given effect to at the earliest. It is to be noted that in offence under Section 27 of NDPS Act, no distinction is made between small and commercial quantity. This Court may hasten to add that a decision in each case is to be :: 20 ::
arrived at on the particular facts
thereof."
10. Therefore from the above discussion, a
conclusion can be drawn that if the petitioner
cannot be prosecuted for the offences under
section 21 and 27A of the NDPS Act as there are no materials against him to prosecute him for those offences, for the offence under section 27, he is entitled to claim immunity in accordance with section 64A of the NDPS Act. With this discussion, the petition stands allowed. The proceedings against the petitioner in Special Case No. 768/2021 on the file of XXXIII Additional City Civil and Sessions and Special Judge, Bengaluru, are quashed.
Sd/-
JUDGE ckl