Karnataka High Court
Mr. Benson Benny vs Union Of India on 3 April, 2024
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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NC: 2024:KHC:13621
CRL.P No. 751 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION NO. 751 OF 2024
BETWEEN:
MR. BENSON BENNY,
S/O BENNY LUKOSE,
AGED ABOUT 24 YEARS,
R/AT NO.11, SFS ENCLAVE,
8TH A MAIN ROAD, 11TH CROSS,
ANANTHA NAGARA,
VTC: KAMMASANDRA,
ELECTRONICS CITY PHASE - 1,
ANEKAL,
BENGALURU - 560 100.
IN COMPLAINT NAME IS INDICATED AS:
MR.BENSON @ BENSON BENNY,
S/O BENNY LUKOSE.
...PETITIONER
(BY SRI. AMAR CORREA., ADVOCATE)
Digitally signed by B AND:
K
MAHENDRAKUMAR
Location: HIGH
COURT OF
UNION OF INDIA,
KARNATAKA THROUGH INTELLIGENCE OFFICER,
NARCOTICS CONTROL BUREAU,
BENGALURU ZONAL UNIT, YELAHANKA,
BENGALURU - 560 064.
...RESPONDENT
(BY SRI. MALLANAGOUDA H., ADVOCATE)
THIS CRL.P. IS FILED U/S 482 OF CR.P.C., PRAYING TO 1.
SET ASIDE THE ORDER DATED 23.08.2023 PASSED BY THE
HONBLE XXXIII ADDL.CITY CIVIL AND SESSIONS JUDGE AND
SPL.JUDGE FOR NDPS CASES IN SPL.C.C.NO.1822/2023 (ARISING
OUT OF NCR F.NO.48/1/30/2022/BZU OF RESPONDENT POLICE)
THEREBY TAKING COGNIZANCE OF THE OFFENCE P/U/S 8(c) R/W
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NC: 2024:KHC:13621
CRL.P No. 751 of 2024
20(b)(ii)(A), 23(a), 27, 27(a), 28 AND 29 OF NDPS ACT AND ISSUING
SUMMONS TO THE PETITIONER AND ANOTHER ARRAYING THIS
PETITIONER AS ACCUSED NO.1 AS AGAINST THE PETITIONER
VIDE ANNEXURE - A2.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioner is sought to be prosecuted for the offences punishable under Sections 20(b)(ii)(A), 23(a), 27, 27A, 28, and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'NDPS Act').
2. The case of the prosecution is that respondent No.2 received credible information indicating that a parcel bearing No. UA931757695US, located at the Foreign Post Office in Chamarajpet, Bangalore, was suspected to contain narcotic drugs. Upon searching the parcel, it was discovered to contain drugs, which were seized in the presence of two independent witnesses. The consignee's name and address were listed as Benson, Electronic City, 11 SFS Enclave, 8th A Main Road, 11th Cross Road, Ananthnagar, Phase-1, Bengaluru-560100, along with mobile No. 7204961863. Based on this information, the petitioner, identified as accused No.1, was summoned to record his statement and subsequently arrested on 22.12.2022. During interrogation, accused No.1 allegedly admitted to purchasing ganja for personal consumption as well as on behalf of accused No.2.
3. Learned counsel for the petitioner argues that the parcel containing ganja was opened in the presence of -3- NC: 2024:KHC:13621 CRL.P No. 751 of 2024 independent witnesses and not in the presence of the petitioner. There is no material evidence to establish that the ganja was procured by the petitioner. The alleged receipt of a dummy parcel by the petitioner is not supported by any corroborative evidence to substantiate the allegations against him. Therefore, in the absence of any seizure of ganja in the petitioner's conscious possession, the continuation of criminal proceedings would be an abuse of the legal process. Additionally, the counsel submits that apart from the confession statement of the petitioner/accused No.1, there is no corroborative material to substantiate the allegations. As such, the confession statement recorded is inadmissible in law under Section 25 of the Evidence Act. In support of this argument, reliance is placed on the decision of the Apex Court in Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1.
4. In contrast, learned counsel for the respondent/complainant submits that the parcel was addressed to the petitioner/accused No.1, who confessed to procuring ganja for self-consumption. Therefore, there is a prima facie case to proceed against the petitioner for the aforementioned offences, and the petition should be dismissed.
5. After considering the submissions made by the learned counsels for the parties, it is noted that the information regarding the parcel suspected of containing drugs was received on 20.12.2022. The complainant proceeded to the Foreign Post Office and, in the presence of two independent witnesses, opened the parcel, revealing that it contained 70 grams of ganja. According to -4- NC: 2024:KHC:13621 CRL.P No. 751 of 2024 the complaint, to intercept the receiver of the suspected parcel, the NCB team approached the postal authority on 21.12.2022. A dummy parcel was arranged at the post office, and at around 15:30 hours, one Benson, also known as Benson Benny, arrived to collect his parcel, which he had booked. Upon receiving the parcel and signing the delivery manifest, the NCB officers approached him, introduced themselves, and inquired about the parcel. Benson Benny was then summoned to record his statement regarding the parcel. Subsequently, the petitioner/accused voluntarily accompanied the NCB for further interrogation, during which he confessed to procuring ganja for self-consumption and on behalf of accused No.2.
6. However, to substantiate that the dummy parcel was received by the petitioner/accused No.1, the complainant has not produced any material evidence, such as a panchanama, to prove that the petitioner received a dummy parcel in the presence of two independent witnesses. Aside from the confession statement of accused No.1, there is no material evidence to substantiate that the ganja was procured by accused No.1.
7. The Hon'ble Supreme Court, in the case of Tofan Singh (supra), held that officers vested with powers under Section 53 of the NDPS Act are considered "police officers" within the meaning of Section 25 of the Evidence Act. As a result, any confessional statement made to them would be inadmissible under Section 25 of the Evidence Act and cannot be used to convict an accused under the NDPS Act.
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8. The Supreme Court has categorically held that statements recorded under Section 67(c) of the NDPS Act cannot be used as confessional statements in a trial for offences punishable under the NDPS Act. Any confessional statement made to a police officer vested with powers under Section 53 of the NDPS Act is barred under Section 25 of the Evidence Act and cannot be taken into account to convict an accused under the NDPS Act.
9. Therefore, the petitioner cannot be prosecuted solely based on the fact that the parcel bore his name, unless there is material evidence to establish that the petitioner had physical or constructive possession of the drugs, i.e., he had control over the parcel. Consequently, the continuation of the criminal proceedings would constitute an abuse of the legal process.
10. Accordingly, I pass the following:
ORDER i. Criminal Petition is allowed.
ii. The impugned proceedings in Spl.C.C.No.1822/2023 on the file of XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS cases, Bangalore insofar as accused No.1 is hereby quashed.
Sd/-
JUDGE RKA