Karnataka High Court
Ragini Dwivedi @ Gini @ Rags vs The State Of Karnataka on 3 November, 2020
Equivalent citations: AIRONLINE 2020 KAR 2544
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF NOVEMBER 2020
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
CRL.P. No.5389/2020 C/W CRL.P. Nos.4934/2020,
5158/2020, 5162/2020, 5194/2020 and 5362/2020
In Crl.P.5389/2020
BETWEEN
Ragini Dwivedi @ Gini @ Rags
D/o. Colonel Rakesh Kumar
Aged about 29 years,
R/at No.101, HRC, Ananya Apartments,
Judicial Layout, Allalsandra GKVK Post,
Bengaluru-560065.
...Petitioner
(By Sri. Jayakumar S Patil, Senior Advocate, for
Sri Mahammed Tahir, Advocate)
AND
The State of Karnataka
Through Cottonpet Police (CCB),
Represented by the
Special Public Prosecutor,
High Court Building, Bengaluru-560001.
...Respondent
(By Sri.Veeranna G.Tigadi, Spl.P.P.)
This Criminal Petition is filed under Section 439
Cr.P.C. praying to enlarge the petitioner on bail in
Cr.No.109/2020 of Cottonpet Police Station, Bengaluru City,
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for the offence punishable under Sections 21, 21(c), 27(b),
27A, 29 of NDPS Act and Section 120B of IPC.
In Crl.P.4934/2020
BETWEEN
Sri. Shivaprakash, S/o. Earappa,
Aged 46 years, R/at 19, Shilpa Nilaya
1st Cross, Ganesha Block,
Nandhini Layout, Bengaluru-560096.
...Petitioner
(By Sri. Tomy Sebastian, Senior Advocate, for
Sri Melanie Sebastian, Advocate)
AND
State of Karnataka
By Cottonpet Police Station,
Bengaluru, (Central Crime Branch Bengaluru)
Represented by the Special Public Prosecutor,
High Court Building, Bengaluru-560001.
...Respondent
(By Sri. Veeranna G. Tigadi, Spl.P.P.)
This Criminal Petition is filed under Section 438
Cr.P.C. praying to enlarge the petitioner on bail in the event
of his arrest in Cr.No.109/2020 of Cottonpet Police Station,
Bengaluru City, for the offence punishable under Sections
21, 21(c), 27(b), 27-A, 29 of NDPS Act and Section 120-B of
IPC.
In Crl.P.5158/2020
BETWEEN
Abhiswamy, S/o. Rangaswamy,
Aged about 38 years, R/at Pragathi Farm,
3
19th KM Tumkur Road,
Dasanapura Hobli,
Madanaiyakanahalli,
Madavara, Bengaluru
Bengaluru North-560038
Karnataka.
...Petitioner
(By Sri. C.H. Hanumantharaya, Advocate)
AND
State of Karnataka by
Cottonpet Police Station (CCB),
Bengaluru, Represented by the
Special Public Prosecutor,
High Court Building, Bengaluru-560001.
...Respondent
(By Sri. Veeranna G. Tigadi, Spl.P.P.)
This Criminal Petition is filed under Section 438
Cr.P.C. praying to enlarge the petitioner on bail in the event
of his arrest in Cr.No.109/2020 of Cottonpet Police Station,
Bengaluru City, for the offence punishable under Sections
21, 21(c), 27(b), 27A, 29 of NDPS Act.
In Crl.P.5162/2020
BETWEEN
Kum. Archana Manohar Galrani
@ Sanjana Galrani,
Aged about 33 years,
D/o. Manohar Galrani,
R/at No.101, Sai Tejas Shareen,
Indiranagar, 100 feet Road,
Behind Peter England Showroom,
Bengaluru-560008.
...Petitioner
(By Sri. Hasmath Pasha, Senior Advocate, for Sri Nasir Ali,
Advocate)
4
AND
State of Karnataka
By Cottonpet Police and CCB Police,
Bengaluru City-560053.
(Represented by the Learned
Special Public Prosecutor,
High Court of Karnataka,
Bengaluru-560001).
...Respondent
(By Sri. Veeranna G. Tigadi, Spl.P.P.)
This Criminal Petition is filed under Section 439
Cr.P.C. praying to enlarge the petitioner on bail in
Cr.No.109/2020 registered by Cottonpet Police Station,
Bengaluru City, for the offence punishable under Sections
21, 21(c), 27(b), 27A, 29 of NDPS Act and Section 120B of
IPC.
In Crl.P.5194/2020
BETWEEN
Prashanth Ranka
S/o. B.L.Ranka,
Aged about 41 years,
R/o. No.39/1, 4th Cross,
PWD Road, Vignan Nagar,
Bengaluru-560075.
...Petitioner
(By Sri. Bharath Kumar V., Advocate)
AND
1. State of Karnataka
Through Station House Officer,
Cottonpet Police,
Bengaluru City-560053.
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2. City Crime Branch,
Through Assistant Commissioner of Police,
Narcotics Squad, N.T.Pet,
Bengaluru-560018.
Both respondents represented by
the Special Public Prosecutor,
Hon'ble High Court of Karnataka,
Bengaluru-560001.
...Respondents
(By Sri. Veeranna G. Tigadi, Spl.P.P.)
This Criminal Petition is filed under Section 439
Cr.P.C. praying to enlarge the petitioner on bail in
Cr.No.109/2020 of Cottonpet Police Station, Bengaluru City,
for the offence punishable under Sections 21, 21C, 27(b),
27(a), 29 of NDPS Act and Section 120B of IPC.
In Crl.P.5362/2020
BETWEEN
Prashanth Raju G.
Aged 39 years,
S/o. Mr. C.Gopinath,
#74, 3rd Main Road, 3rd Cross,
Dollars Layout, BTM 2nd Stage,
Bannerghatta Road,
Bengaluru-560076.
...Petitioner
(By Sri. Saravana, Advocate, for
Sri. Satyanarayana S. Chalke, Advocate)
AND
The State of Karnataka
By the Station House Officer,
Cottonpet Police Station,
Bengaluru City
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High Court of Karnataka
High Court of Karnataka Building,
Dr. B.R.Ambedkar Veedhi,
Bengaluru-560001.
...Respondent
(By Sri. Veeranna G. Tigadi, Spl.P.P.)
This Criminal Petition is filed under Section 438
Cr.P.C. praying to enlarge the petitioner on bail in the event
of his arrest in Cr.No.109/2020 of Cottonpet Police Station,
Bengaluru City, for the offence punishable under Sections
21, 21(c), 27(b), 27A, 29 of NDPS Act and Section 120B of
IPC.
These Criminal Petitions having been heard and
reserved on 24.10.2020, coming on for pronouncement this
day, the court pronounced the following:
ORDER
All these criminal petitions are disposed of by a common order as they arise out of an FIR registered in Cr. No. 109/2020 by the Cottonpet Police Station and being investigated by Central Crime Branch, Bengaluru, in relation to offences punishable under sections 21, 21(c), 27(b), 27(A) and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act' for short) read with section 120B of Indian Penal Code.
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2. Criminal Petitions 4934/2020, 5158/2020 and 5362/2020 are filed under section 438 of the Code of Criminal Procedure ('the Code' for short); the petitioners are accused Nos.1, 10 and 8 respectively. Criminal Petitions 5389/2020, 5162/2020 and 5194/2020 are filed under section 439 of the Code and the petitioners are accused Nos. 2, 14, and 4 respectively.
3. Brief account of the events culminating into registration of FIR and all these bail petitions being filed are :
B.K.Ravishankar, arraigned as accused No. 16 in Crime No. 109/2020, was accused No.4 in another criminal case registered by Banasavadi Police Station in Crime No. 588/2018 in relation to offences punishable under NDPS Act. As the certified copy of the proceedings sheet in Crime No. 588/2018 discloses, B.K.Ravishankar was produced before the Special Court Judge on 3.9.2020 at 5.15 PM with a request for remanding him to police custody. The prosecution case concerning Crime No. 109/2020 is that on 3.9.2020 at 8.00 AM, B.K.Ravishankar made a statement 8 under section 67 of the NDPS Act before the Assistant Commissioner of Police, Sri K.C.Goutham disclosing supply, trafficking and consumption of drugs in the parties arranged at various places in Bengaluru City. Based on this information, Sri K.C.Goutham, the Assistant Commissioner of Police, made a report to the Police Inspector, Cottonpet Police Station on 4.9.2020 to take action according to provisions of NDPS Act. In his report to the Police Inspector, he implicated about 12 persons by their names, they were (1) Shivaprakash (2) Ragini Dwivedi (3) Viren Khanna (4) Prashant Ranka (5) Vaibhav Jain (6) Aditya Alva (7) Loom Pepper @ Simon (8) Prashant Raju (9) Ashwin @ Boogi (10) Abhiswamy (11) Rahul Tonse (12) Vinay and others. Thus FIR was initially registered against 12 named accused, and law was set into motion. In the course of investigation, a few others were added as accused. Now accused Nos. 2, 3, 4, 5, 7, 11, 13, 14, 15, 16, 17 and 18 are in custody. The Special Court declined to grant anticipatory bail to the petitioners who have approached this court under section 9 438 of the Code, and also regular bail to those petitioners who have made petitions under section 439 of the Code.
4. I have heard elaborate arguments advanced by learned senior counsel, Sri Hasmath Pasha, Sri Jayakumar S Patil, Sri C.H.Hanumantharaya, Sri Tomy Sebastian, and Sri Bharat Kumar and Sri Saravana on behalf of Sri Satyanarayana Chalke and Sri Veeranna G Tigadi, the learned Special Public Prosecutor. Sri Tigadi has filed statement of objections. Contentions in support of the petitioners urged by each counsel are as follows :
4.1. With a hoard of decisions, Sri Hasmath Pasha, (for accused-14, Sanjana Galrani) stressed the following points -
(i) The name of accused-14 was not there in the report given by the ACP-Goutham, the blame is only against the peddlers.
(ii) The report that K.C.Goutham gave was on the basis of statement said to have been made by B.K.Ravishankar, who was already in custody in connection with another case. Though the statement 10 purports to be according to section 67 of the NDPS Act, it is hit by section 25 of the Evidence Act.
(iii) The police officer who received information appears to have not reduced it into writing, there was no compliance of section 42(2) of NDPS Act.
(iv) The articles seized from the house of accused-14 during search were mobile phones, laptops and other electronic gadgets, no contraband was seized.
(v) The materials collected by the investigating officer indicates that accused-14 could be a consumer, for which reason the offence that could be invoked against her is section 27(b) of NDPS Act and the maximum punishment prescribed is six months imprisonment or fine extending upto Rs.10,000/- or with both. This offence is bailable. There are no materials to connect her with other offences.
(vi) Report from FSL in regard to sample collected has not been received, although according to the guidelines, 15 days time is specified.11
(vii) Accused-14 cannot be compelled to share passwords to open the gadgets, it is against her right to privacy under Article 21, and also violates Article 20(3) of the Constitution of India.
(viii) There is clear violation of human right as she has been detained in custody without any reasonable cause.
(ix) High Court's power to exercise jurisdiction under section 439 of the Code is wide, section 37 of the NDPS Act does not come in the way.
4.2. By Sri Bharat Kumar, on behalf of accused No.4 (Prashanth Ranka) FIR has been registered in regard to organized drug racket based on a statement given by another accused, B.K.Ravishankar. But this statement does not indicate involvement of accused No.4 in the distribution of drugs or contraband substances. There cannot be a presumption about involvement of accused No.4. For invoking the offence under section 21 of NDPS Act, the quantity of the substance is very important for, if the quantity of the substance is 12 small, the accused is entitled to be released on bail. Accused No.4 has been in custody since 8.9.2020, the remand application does not show as to for what reason he has to be detained in custody. He is ready to cooperate with police for completing the investigation and he may be released on bail by imposing any condition.
4.3. By Sri Jayakumar S Patil on behalf of Sri Mohammed Tahir, advocate for accused No.2-Ragini Dwivedi B.K.Ravishankar's statement was recorded after he was taken to custody in Crime No. 588/2018 of Banasvadi Police Station. The order sheet shows that actually he was arrested on 2.9.2020 though he was produced before the Magistrate on 3.9.2020. But in the FIR registered in Crime No.109/2020, there is no reference to Crime No. 588/2018. This shows deliberate intention of the police to falsely implicate accused No.2 against whom there is nothing to indicate that she was organizing the parties. The allegation is just that she used to participate in the parties and 13 consume small quantity drug. Consumption of drug attracts section 27(b) of NDPS Act, the punishment prescribed is 6 months imprisonment or fine up to Rs.10,000/- or both. He further argued that so far as the offence under section 27(A) of NDPS Act is concerned, there is no material that accused No.2 financed for, or harboured those who are involved in illicit traffic of drugs. There is no material for conspiracy or abatement. The remand applications do not disclose reasons that necessitate her detention in the custody. Therefore, accused No.2 is entitled to be released on bail. 4.4. By Sri Tomy Sebastian representing accused No.1 - Shivaprakash The statement of Ravishankar shows that he was introduced to accused No.2 by Shivaprakash. Except this, there is nothing to show that he participated in the parties and also that he consumed drugs. In the statement of objections filed by V.G.Tigadi, it is clearly stated that materials can be collected only after interrogation; that means there is no evidence against accused No.1. Accused 14 No.1 assures of his cooperation to the police for completing the investigation and therefore he is entitled to anticipatory bail.
4.5. By Sri C.H.Hanumantharaya representing accused- 10 (Abhiswamy) Unnecessarily, Abhiswamy is arraigned as accused No. 10, but he could be considered as a witness for prosecution. Statement of Ravishankar shows that accused No.10 did not introduce a peddler from Nigeria, rather it was one Ashwin Boogi i.e., accused 9. Referring to the confessional statement of Loom Pepper, i.e., accused 7, he argued that Ravishankar did not come to know him for the first time through accused No.10, rather Ravishankar was in contact with Loom Pepper since a year prior to 4.9.2020 and if Ravishankar took the name of accused 10 by chance, it cannot be said that he was involved in drug racketing. Therefore accused No.10 appears to have been falsely implicated. He is a petrol bunk owner as also a landlord. He 15 is always available for investigation. Hence he needs to be enlarged on anticipatory bail.
4.6. By Sri Satyanarayana Chalke for accused No. 8 Statement of Ravishankar shows that a birthday party of accused No.8 was arranged on 28.6.2020 at 6.30 PM, but his birthday falls on 18th July, therefore very participation of accused No.8 in the birthday party is doubtful. Ravishankar's statement also does not indicate consumption of drug by accused No.8. There was no recovery from him, therefore no presumption can be drawn under section 35 of NDPS Act. Absolutely there are no materials, chances of false inculpation cannot be ruled out. Accused No.8 is therefore entitled to anticipatory bail. 4.7. Argument of Sri V.G.Tigadi, Special Public Prosecutor FIR need not be an encyclopedia, it is just a first information with regard to happening of a crime. The case on hand is still under investigation. According to NDPS Act, charge sheet can be filed within 180 days from the date of 16 remand of accused to custody. Still there is time to file charge sheet.
Statement made by B.K.Ravishankar shows a kind of conspiracy for promoting the consumption of drugs and parties were being arranged only for the purpose of facilitating the sale and consumption of the drugs. Whenever parties are arranged for this purpose, manufacturers, financiers, peddlers and facilitators involve. Therefore, the prosecution case is that there is conspiracy, about which the investigating officer is collecting materials.
The very purpose of participation of accused Nos. 2 and 14 was to attract large number of consumers as they are celebrities. The materials so far collected by the investigating officer show that accused Nos. 2 and 14 are not only consumers but also sellers and facilitators. Since parties were being arranged very frequently for promoting the sale and the consumption, the total quantity of the drugs sold, distributed and consumed cannot be dissected. Each individual might consume a very small quantity of drug, but 17 sale and consumption put together exceeds commercial quantity. It is not as though any drug was not seized; some seized drug may indicate that it is a small quantity; and seizure of drugs might be from the possession of some of the accused, but it does not necessarily mean that commercial quantity is not involved.
Scope of remand application is limited, it is only for the purpose of seeking remand of the accused to custody. Names of witnesses are not disclosed for maintaining secrecy of investigation. There is threat to the witnesses. Merely for the reason that names of the witnesses are not disclosed, it cannot be a ground for granting bail. In a case of this type, what is essential is to go beyond the complaint or the remand application for understanding the seriousness of the offences. These offences are perpetrated against the society, no individual is a target. The youth of this country are being lured for promoting the consumption of drugs. In this view, quantity of the drug does not assume significance. 18
There is compliance of section 42 (2) of NDPS Act. In fact in the report made by the ACP, Sri Goutham, there is reference to compliance of section 42 (2) of NDPS Act, and therefore this ground is not available to the petitioners.
It is the duty of the accused to cooperate with the investigating officer. A person against whom there are allegations of committing crime cannot claim immunity under the garb of "Right to Privacy". The arrested accused have not been compelled to share their passwords, in fact they have given passwords in respect of e-mail IDs in which there are no incriminating materials, but they are not ready to share the passwords of other e-mail IDs, and for this reason, adverse inference may be drawn that those e-mail IDs contain materials helpful for prosecution.
It is true that B.K.Ravishankar is also one of the accused in Crime No. 588/2018, his statement which led to registration of FIR in Crime No. 109/2020, was actually recorded before his arrest in Crime No. 588/2018. The disclosure that he made in his statement is not hit by 19 section 25 of the Evidence Act, rather it is admissible according to section 27 of the Evidence Act. He argued that if an accused reveals involvement of another accused in commission of a crime, it also amounts to disclosure within the meaning of section 27 of the Evidence Act. This statement is also relevant according to section 10 of Evidence Act. Therefore Ravishankar's statement cannot be discarded.
It was his further argument that Crime No. 588/2018 was altogether a different crime, merely for the reason that in the charge sheet, it is mentioned that further investigation under section 173 (8) of the Code is required, it does not mean that there was no need to register another FIR in Crime No. 109/2020. The first FIR was in respect of seizure of cocaine, the second one, i.e. Cr. No.109/2020 is in respect of an organized drug racket, hence both are different.
Regarding sample collection, he submitted that there was no discrepancy actually. In respect of packing the scalp hairs, separate guidelines were issued. The CFSL returned 20 the hair samples to follow the guidelines, the same has been set right.
He further argued that accused No. 2 tried to mislead the investigation by filling water in the bottle when she was asked to give her urine sample. And in regard to those accused who have sought anticipatory bail, he submitted that the traces of drug remain in the hairs for quite long time, and being aware of this they are avoiding arrest; and they are waiting for traces of drug to vanish. For all these reasons, the petitions deserve to be dismissed. 4.8. Reply of Sri Hasmath Pasha and Sri Jayakumar S Patil Conspiracy requires strict proof, there must be evidence indicating conspiracy prior to commission of offence. Section 10 of the Evidence Act is not applicable once a person is arrested, and therefore with the arrest of B.K.Ravishankar, his statement under section 67 of the NDPS Act cannot be used for proving conspiracy. 21
Crime No. 588/2018 is misused for entangling accused 2 and 14, who have earned good name in the film industry. The police wanted media attraction, they foisted a false story of drug racketing. Post arrest statements of the accused cannot be made use of. Section 37 of NDPS Act cannot be stretched too far to deny bail. Section 439 of the Code confers special powers on the High Court to grant bail in spite of rigors of section 37 of NDPS Act. 4.9. Reply of Sri Bharat Kumar In the remand application it is not stated that passwords are not shared, this aspect therefore cannot be a reason for declining bail.
5. Discussion The first aspect to be borne in mind is that while deciding application for bail, the Courts cannot undertake the task of assessing the evidence, this is well established principle. If bail is sought after completion of investigation, the examination of the charge sheet is limited to finding out 22 the existence of prima facie materials against the accused; not more than that. But when bail is sought when investigation is underway, the whole endevour becomes circumscribed for the materials are scanty and the discretion must be exercised with great circumspection.
6. Now before examining whether there are grounds for granting the petitions, some points canvassed by Sri Hasmath Pasha require to be dealt with. His argument was with reference to personal liberty and protection against self incrimination enshrined in Articles 21 and 20 (3) of the Constitution of India. Indeed the law relating to bail is concerned with personal liberty of a person, which is very sacrosanct. But the question is whether it is absolute, can a person involved in a criminal case as an accused forcefully urge for his liberty. In my opinion, the answer to this question lies in Article 21 itself.
"Article 21. No person shall be deprived of his life or personal liberty except according to procedure established by law".23
The expression, "except according to procedure established by law" connotes a meaning inter alia that whenever law is set into motion for taking punitive action against a person for having violated law, such person, until found by courts of law to be not guilty, renders himself disentitled to claim absolute liberty. If the offences alleged are lethal to society and detrimental to the interest of the nation, personal liberty recedes to background. The interest of the nation or the society is always paramount. The Hon'ble Supreme Court, has, in the case of Sanjay Chandra vs CBI [(2012) 1 SCC 40] (a decision cited by Sri Hasmath Pasha), referred to its earlier decision in Vaman Narain Ghiya vs State of Rajasthan [(2009) 2 SCC 281], where it is held as below :
"33. The concept and philosophy of bail was discussed by this Court in Vaman Narain Ghiya v. State of Rajasthan, (2009) 2 SCC 281, thus:
"6. "Bail" remains an undefined term in CrPC. Nowhere else has the term been statutorily defined. Conceptually, it continues to be understood as a right for assertion of freedom against the State 24 imposing restraints. Since the UN Declaration of Human Rights of 1948, to which India is a signatory, the concept of bail has found a place within the scope of human rights. The dictionary meaning of the expression "bail" denotes a security for appearance of a prisoner for his release. Etymologically, the word is derived from an old French verb "bailer" which means to "give" or "to deliver", although another view is that its derivation is from the Latin term "baiulare", meaning "to bear a burden". Bail is a conditional liberty. Stroud's Judicial Dictionary (4th Edn., 1971) spells out certain other details. It states: "... when a man is taken or arrested for felony, suspicion of felony, indicted of felony, or any such case, so that he is restrained of his liberty. And, being by law bailable, offereth surety to those which have authority to bail him, which sureties are bound for him to the King's use in a certain sums of money, or body for body, that he shall appear before the justices of goal delivery at the next sessions, etc. Then upon the bonds of these sureties, as is aforesaid, he is bailed--that is to say, set at liberty until the day appointed for his appearance."25
Bail may thus be regarded as a mechanism whereby the State devolutes upon the community the function of securing the presence of the prisoners, and at the same time involves participation of the community in administration of justice.
7. Personal liberty is fundamental and can be circumscribed only by some process sanctioned by law.
Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational right of the police. It must result in minimum interference with the personal liberty of the accused and the right of the police to investigate the case. It has to dovetail two conflicting demands, namely, on the one hand the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence viz. the presumption of innocence of an accused till he is found guilty. Liberty exists in proportion to 26 wholesome restraint, the more restraint on others to keep off from us, the more liberty we have. (See A.K. Gopalan v. State of Madras) (emphasis supplied)
7. In Sanjay Chandra (supra), there is reference to another judgment in Siddharam Satlingappa Mhetre [(2011) 1 SCC 694 where it is held : -
"34. More recently, in Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, this Court observed that:
"84. Just as liberty is precious to an individual, so is the society's interest in maintenance of peace, law and order. Both are equally important."
35. This Court further observed : (Siddharam Satlingappa case, SCC p. 737, para 116) "116. Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case."
(emphasis supplied) 27
8. Also, in the case of NEERU YADAV vs STATE OF UTTAR PRADESH AND ANOTHER [(2016) 15 SCC 422], the clear observation of the Hon'ble Supreme Court is as follows:-
"13. We will be failing in our duty if we do not take note of the concept of liberty and its curtailment by law. It is an established fact that a crime though committed against an individual, in all cases it does not retain an individual character. It, on occasions and in certain offences, accentuates and causes harm to the society. The victim may be an individual, but in the ultimate eventuate, it is the society which is the victim. A crime, as is understood, creates a dent in the law and order situation. In a civilised society, a crime disturbs orderliness. It affects the peaceful life of the society. An individual can enjoy his liberty which is definitely of paramount value but he cannot be a law unto himself. He cannot cause harm to others. He cannot be a nuisance to the collective. He cannot be a terror to the society; and that is why Edmund Burke, the great English thinker, almost two centuries and a decade back eloquently spoke thus:-28
"Men are qualified for civil liberty, in exact proportion to their disposition to put moral chains upon their own appetites; in proportion as their love to justice is above their rapacity; in proportion as their soundness and sobriety of understanding is above their vanity and presumption; in proportion as they are more disposed to listen to the counsel of the wise and good, in preference to the flattery of knaves. Society cannot exist unless a controlling power upon will and appetite be placed somewhere and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of things that men of intemperate minds cannot be free. Their passions forge their fetters".
9. Therefore with the aid of above observation of the Hon'ble Supreme Court, the conclusion to be drawn is that an accused cannot urge for liberty as vociferously as a person not being an accused; I make it clear that I am not of the opinion that bail should be denied in all the cases, every 29 case must be examined in the background of the facts and circumstances and the principles governing grant of bail.
10. Sri. Hasmath Pasha referred to Article 20(3) of the Constitution of India as according to him requiring the accused to share their passwords of the electronic gadgets amounts to self incrimination and violation of 'Right to Privacy'. He has referred to the decisions of the Supreme Court in the cases of K.S.Puttaswamy (Retired) and Another vs Union of India and Another [(2019) 1 SCC 1] and Nandini Satpathy Vs. P.L.Dani and Another [(1978) 2 SCC 424]. Sri. V.G. Tigadi refuted this argument by submitting that it is the duty of every person including the accused to co-operate with the investigating agency. If he does not co-operate voluntarily, adverse inference has to be drawn.
11. Certainly this is a point of cogitation as it involves conflict of interest of an individual protected under Article 20(3) of the Constitution vis-a-vis right of police to investigate a crime. K.S.Puttaswamy (supra) has 30 discussed the concept of 'Right to Privacy' in the light of Article 21 of the Constitution, which aspect I have already dealt with. But Nandini Satpathy (supra), essentially discusses the implication of Article 20(3); The Supreme Court while holding that the immunity available under Article 20(3) of the Constitution extends to the stage of enquiry or investigation, also holds as below:
"49. The problem that confronts us is amenable to reasonable solution. Relevancy is tendency to make a fact probable. Crimination is a tendency to make guilt probable. Confession is a potency to make crime conclusive. The taint of tendency, under Art. 20(3) and section 161 (1), is more or less the same. It is not a remote, recondite, freak, or fanciful inference but a reasonable, real, material or probable deduction. This governing test holds good, it is pragmatic, for you feel the effect, its guilty portent, fairly clearly".
12. Article 20(3) gives protection to an accused, that means he cannot be compelled to disclose any information which may possibly inculpate him. But this Article does not 31 come in the way of volunteering to disclose the information, even though it is inculpatory. Whether such a disclosure is voluntary or compulsive, is a question that a court has to decide during trial, not at the stage of deciding an application for bail. What if an accused is reluctant to disclose any information? In such an event, sometimes, especially a case based on circumstantial evidence, investigation never sees progress. In many a case, speaking from experience, voluntary disclosure made by an accused which is relevant according to Section 27 of the Indian Evidence Act, has led to chain of circumstances being completed. Therefore reluctance of the accused to voluntarily share the passwords, as rightly argued by Sri. V.G. Tigadi, may lead to draw an adverse inference against them. To this extent the hands of the Courts are not fettered.
13. Harking back to the actual scenario projected by the prosecution, the statement made by B.K.Ravishankar paved way for registration of a separate FIR. The prosecution has suspected conspiracy in organizing parties 32 in the hotels and the home stay resorts for facilitating the trafficking of drugs. Conspiracy requires strict proof. As argued by Sri. Hasmath Pasha, there must be conspiracy before the arrest of an accused, and of course this position of law is settled.
14. On the point of making use of statement of Ravishankar, if Sri. V.G.Tigadi, referred to Section 10 of the Indian Evidence Act, Sri. Hasmath Pasha refuted it by referring to judgment of the Supreme Court in the case of State of Gujarat Vs. Mohammed Atik and Others [(1998) 4 SCC 351] wherein it is held that post arrest statement made by a person before the police, whether by way of confession or otherwise, relating to his involvement in the conspiracy, would not fall within the ambit of conspiracy. This point can be better appreciated after conclusion of trial, it is too early to urge this point now. However in the same ruling, it is held:
"8. In State of Rajasthan vs. Bhup Singh -
1997 (10) SCC 675 a similar objection
raised by the defence was considered in the
33
context of admissibility of a confessional
statement under Section 27 of the Evidence Act.
In that case, information was elicited by
the police from the accused during
investigation in connection with a particular offence and weapon of offence was recovered in consequence thereto. That information became relevant in a subsequent case, but the accused contended that the said information is not admissible in evidence in the subsequent case. This High Court over-ruled the objection on the ground that there is no such prohibition in Section 27 of the Evidence Act. It was observed that "it is immaterial whether the information was supplied in connection with the same crime or a different crime." The same principle applies to a confession recorded under Section 15 of the TADA".
15. The above observation makes it amply clear that the statement of B.K.Ravishankar cannot be warded off for registration of FIR in respect of suspected drug racketing. His statement discloses altogether a different crime not connected with Crime No.588/2018. The argument that B.K. Ravishankar's statement was taken after his arrest in 34 the earlier case and therefore hit by Section 25 of the Evidence Act is a question to be answered by the trial court, as any observation made now may come in the way of drawing inferences by the trial court. However, at this stage there is no impediment for considering his statement as it discloses involvement of many persons. The question whether such a disclosure falls within the ambit of Section 27 of the Indian Evidence Act or not is made clear by the Hon'ble Supreme Court in the case of Mehboob Ali and Another Vs. State of Rajasthan [(2016) 14 SCC 640] a case law cited by Sri. V.G. Tigadi. In paras 7 and 15, it is held:
"7. It was submitted on behalf of the appellants Mehboob Ali and Mohd. Firoz that the confessional statement of accused persons recorded under section 27 of Evidence Act is not admissible as the accused persons were under the custody of Police. No recovery has been made from accused Mehboob Ali and Mohd. Firoz. As such their conviction is illegal and is liable to be set aside. On behalf of the accused Anju Ali and Majhar it has been submitted that recovery from 35 them has not been proved and their conviction is bad in law".
"15. It is apparent that on the basis of the information furnished by accused Mehboob Ali and Firoz and other accused, Anju Ali was arrested. The fact that Anju Ali was dealing with forged currency notes was not to the knowledge of the Police. The statement of both accused has led to discovery of fact and arrest of co-accused not known to police. They identified him and ultimately statements have led to unearthing the racket of use of fake currency notes. Thus the information furnished by the aforesaid accused persons vide information memos is clearly admissible which has led to the identification and arrest of accused Anju Ali and as already stated from possession of Anju Ali fake currency notes had been recovered. As per information furnished by accused Mehboob and Firoz vide memos Exts. P41 and P42, the fact has been discovered by Police as to the involvement of accused Anju Ali which was not to the knowledge of the Police. Police was not aware of accused Anju Ali as well as the fact that he was dealing with fake currency notes which were recovered from him. Thus the statement of the aforesaid accused 36 Mehboob and Firoz is clearly saved by section 27 of the Evidence Act. The embargo put by section 27 of the Evidence Act was clearly lifted in the instant case. The statement of the accused persons has led to the discovery of fact proving complicity of other accused persons and the entire chain of circumstances clearly makes out that accused acted in conspiracy as found by the trial court as well as the High Court."
(emphasis supplied)
16. Therefore the notion that disclosure made under Section 27 of the Evidence Act is relevant only if physical object is seized, is dispelled and a disclosure about complicity of other accused also becomes relevant. To this extent, at this stage, statement of Ravishankar cannot be ignored.
17. The next aspect is whether the mandate envisaged in Section 42 (2) of the NDPS Act is not followed. Sri. Hasmath Pasha has placed reliance on several rulings viz., (1). Kishan Chand vs State of Haryana [2013(2) SCC 502] and (2). Karnail Singh vs State of Haryana [2009 (8) SCC 539]. He has referred to another judgment of the 37 Supreme Court in the case of Sarija Banu @ Janarthani @ Janani and Another vs State Through Inspector of Police [2004 (12) SCC 266], in support of his argument that even while deciding application for bail, compliance of Section 42(2) assumes importance. Section 42(2) has its own significance; though being very technical provision, it is found to be essential in the light of rigors of punishment. But Sri. V.G. Tigadi has produced a document which shows a report being made by Sri. K.C. Goutham to his next higher officer. Whether this document establishes actual compliance or not, is a question to be decided by the trial court, not at this stage.
18. The next point of argument was with respect to quantity of the contraband substance. It is true that NDPS Act provides for graded punishments depending upon the quantity of the substance seized during raid, and in case of consumption, the punishment is not so severe. Sri. Jayakumar S. Patil, Sri. Hasmath Pasha and Sri. Bharat Kumar have referred to a judgment of the Bombay High Court in the case of Rhea Chakraborty Vs. The Union of 38 India [Criminal Bail Application (Stamp) No.2386/2020]. According to them, bail was granted to accused in that case as it was a case of mere consumption and the material on record did not indicate involvement of commercial quantity of contraband. Their argument was whenever seized substance is small quantity and if it is case of mere consumption, the offence is bailable in accordance with Schedule II of the Code, and in this background the Bombay High Court granted bail.
19. The learned counsel have referred to that paragraph of the judgment which is convenient to them. There is no denial of the fact that bail was granted to accused in that case, but it was based on factual circumstances. In fact what the Bombay High Court has held is quite contrary to the point urged by learned counsel. Following the judgment of the Supreme Court in the case of State of Punjab Vs. Baldev Singh [(1999) 6 SCC 172], it has been held by the Bombay High Court that irrespective of quantity of the contraband substance and the length of the period of imprisonment, all the offences enumerated in NDPS 39 Act are non-bailable. The offence punishable under Section 27(A) of NDPS Act is not quantity specific. Therefore the argument of the learned counsel cannot be accepted.
20. Sri. V.G.Tigadi has made available the Case Diary. Since investigation is not yet completed, it may not be proper to disclose the names of witnesses; suffice it to state here that it discloses many facets, not only of consumption but also the purpose of arranging the parties with a view to facilitating the supply and sale of drugs. It is there in the diary that accused No.2 on the day of her birthday party, consumed cocaine with Ravishankar and offered to sell it to a witness for Rs.5,000/- for a gram. Another witness has stated to have paid Rs.3,00,000/- to accused no.14 towards purchase of drug from her. Regular contact with peddlers by some of the accused is diagrammatically depicted. The investigating officer has also seized certain quantities of drugs and electronic gadgets from the accused during investigation. I find it irrelevant to mention here the quantity seized in view of observation made above. It is mentioned that accused no.2 filled water in the bottle when 40 she was asked to give her urine sample. If this is true, it shows her intention to mislead the investigation. This much of evidence so far collected by the investigating officer rules out the argument that a false case has been registered. In regard to allegation of conspiracy is concerned, it is better not to express any opinion, as even after completion of investigation, no opinion can be given as it is a matter of strict proof. If according to prosecution the parties were being arranged for facilitating the sale of drug and it would amount to conspiracy, it should be proved.
21. Two lacunae that Sri. Hasmath Pasha and Sri Bharat Kumar pointed out were about not obtaining FSL report and improper collection of scalp hair samples. It is true that according to the guidelines, the report must be obtained within 15 days, and if the report is obtained at the earliest, it rules out manipulation. The hair samples forwarded to Central Forensic Science Laboratory were sent back and this is not disputed by Sri. V.G. Tigadi. But what he submitted was that hair samples were collected prior to receiving the guidelines, and for this reason CFSL sent back 41 the samples to be resent to it after following the guidelines. Case diary contains a letter written by CFSL to this effect. Unless it is established as to how the interest of accused is substantially prejudiced, no importance can be given to procedural infractions. In a situation akin to this the Supreme Court in the case of Superintendent, Narcotics Vs. R. Paulsamy [(2000) 9 SCC 549] has held:
"6. In the light of Section 37 of the Act no accused can be released on bail when the application is opposed by the public prosecutor unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail. It is unfortunate that matters which could be established only in offence regarding compliance with Sections 52 and 57 have been pre-judged by the learned single Judge at the stage of consideration for bail. The minimum which learned single Judge should have taken into account was the factual presumption in law position that official acts have been regularly performed. Such presumption can be rebutted only during evidence and not merely saying that no document has been produced 42 before the learned single Judge during bail stage regarding the compliance of the formalities mentioned in those two sections."
(emphasis supplied)
22. Sri. Hasmath Pasha has referred to one judgment of this court in the case of Syed Abdul Ala Vs. Narcotic Control Bureau [ILR 2003 KAR 474] in support of his argument that the powers of the High Court are wide enough to grant bail under Section 439 of the Code despite rigors contained under Section 37 of NDPS Act. But this ruling has no application in the present context, for in the cited decision, bail was sought under medical grounds, which is not the case here.
23. Sri. Hasmath Pasha has placed reliance on two more judgments, namely Sujit Tiwari Vs. State of Gujarat and Another [(2020) SCC Online 84] and Ranjitsing Brahmajeetsingh Sharma Vs. State of Maharashtra [(2005) 5 SCC 294]. He tries to garner support from these rulings in support of his argument that if there is reasonable possibility of acquittal, bail has to be granted. The principle 43 laid down in these decisions can be well applied after charge sheet is filed, it is too early to form an opinion about possibility of acquittal at a time when investigation is still going on.
24. Section 37 (1)(b)(ii) of NDPS Act clearly envisages that if the Public Prosecutor opposes the application, and if the court were to grant bail, it must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. Sri. V.G. Tigadi has referred to three rulings, namely (1). Union of India Vs. Ram Samujh and Another [(1999) 9 SCC 429], (2). Serious Fraud Investigation Office Vs. Nittin Johari and Another [(2019) 9 SCC 165] and (3). Union of India Vs. Niyazuddin S.K. [(2018) 13 SCC 738]. As held in these decisions, satisfaction of the ground as envisaged in Section 37 is mandatory. The discussion made above indicates reasonable grounds about involvement of the petitioners, who have sought regular bail, this inference can be drawn even before completion of 44 investigation. Hence bail cannot be granted to accused nos. 2, 4 and 14.
25. Accused nos.1,8 and 10 have sought anticipatory bail. As argued by Sri. Tomy Sebastian, it is true that in the statement made by B.K.Ravishankar, it is found that he was introduced to accused no.2 by accused no.1, i.e., Shivaprakash. As regards accused no.10, what is stated by Ravishankar is that he gave telephone number of accused no.7 to accused no.9. Then with regard to accused no.8, Ravishankar has stated that he (accused no.8) had arranged a birthday party in a resort near Yelahanka and that he attended that party with accused no.2. Ravishankar has also stated that accused no.8 made a telephone call to him and told that his friend namely Santosh wanted drugs. Therefore it was argued by all three learned counsel for accused no.1, 8 and 10 that the statement of Ravishankar does not implicate the said accused of committing any offence. But the case diary discloses the active participation of these three accused in the parties where drug was 45 rampantly consumed. They cannot simply claim to be unaware of drug abuse.
26. Section 438 of the Code sets out the factors that may be considered for granting anticipatory bail, and the Hon'ble Supreme Court, in the case of Siddharam Satlingappa Mhetre (supra) has also laid down certain guidelines. The applicant for anticipatory bail must make out a case that his arrest is unreasonable; is intended to fix him in a false case; and that the allegations against him are unfounded. If anticipatory bail is sought in the background of accusation of committing offences having adverse implication on the society, the discretion must be exercised with great circumspection to strike balance between personal liberty of a person and the interest of society. In the case of P. Chidambaram Vs. Director of Enforcement [(2019) 9 SCC 24], the Supreme Court has held, "72. We are conscious of the fact that the legislative intent behind the introduction of Section 438 Cr.P.C. is to safeguard the individual's personal liberty and to protect him 46 from the possibility of being humiliated and from being subjected to unnecessary police custody. However, the court must also keep in view that a criminal offence is not just an offence against an individual, rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights -
safeguarding the personal liberty of an individual and the societal interest. It cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant under Article 21 of the Constitution of India".
(emphasis supplied)
27. The Supreme Court in the case of State of Punjab Vs. Baldev Singh [supra] has noted the malady and ill effect of drug abuse in the following words:
"3. Drug abuse is a social malady. While drug addiction eats into the vitals of the society, drug trafficking not only eats into the vitals of the economy of a country, but illicit money generated by drug trafficking is often used for illicit activities including encouragement of terrorism. There is no doubt that drug trafficking, trading and its use, which is a global phenomena and 47 has acquired the dimensions of an epidemic, affects the economic policies of the State, corrupts the system and is detrimental to the future of a country. It has the effect of producing a sick society and harmful culture. Anti-drug justice is a criminal dimension of social justice. The United Nations Conventions Against Illicit Trafficking In Narcotic Drugs & Psychotropic Substances which was held in Vienna, Austria in 1988 was perhaps one of the first efforts, at an international level, to tackle the menace of drug trafficking throughout the comity of nations. The Government of India has ratified this convention".
(emphasis supplied)
28. I opine: Youth, the most precious and indescribable phase of life. The youth are the epitome of idealism, enthusiasm and courage. Swami Vivekananda said, "My child, what I want is muscle of iron and nerve of steel, inside which dwells a mind of the same material as that of which the thunderbolt is made". Muscles of iron and nerves of steel simply refer to the physical strength one should possess. And mind as thunderbolt implies the 48 mental or psychological ability a Man should have. Such physic and psyche are not only the embodiments of youthfulness, but also the representation of productive future. Bothersome brutality dangerously affecting the young is substance abuse. The ill effect of this substance not just costs the physical and psychological abilities of an individual but spreads a dark shadow on the future of the society. The courts should not remain oblivious of this malady even while deciding application for bail.
29. Then, as argued by Sri. V.G. Tigadi, if the petitioners have remained away from interrogation purposefully to see that traces of drug should vanish from their scalp hair, it only shows their ulterior motive. It is recorded in the case diary that accused no.10 - Abhiswamy @ Abhijit Rangaswamy is likely to fly off India. These being the circumstances, if anticipatory bail is granted, investigation may hamper. Of course conditions may be imposed, but their custodial interrogation to unearth the hidden evidence appears to be very much essential. Hence I find no case for granting anticipatory bail. 49
From the foregoing discussion, all the petitions are dismissed.
Sd/-
JUDGE ckl/sd