Karnataka High Court
Sri. Abhay Kumar vs Union Of India on 10 January, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 02.12.2024
Pronounced on : 10.01.2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.917 OF 2024
BETWEEN:
SRI ABHAY KUMAR
S/O SHIVDAYAL MEENA,
AGED ABOUT 24 YEARS,
RESIDING AT ROOM NO. F-108,
IIM BANGALORE HOSTEL,
BANNERGHATTA ROAD,
BENGALURU - 560 076.
PERMANENT RESIDENT OF
H.NO.D 280,
SIDDHARTHNAGAR,
JAIPUR,
RAJASTHAN - 302 017.
... PETITIONER
(BY SRI MAHESH S., ADVOCATE)
AND:
UNION OF INDIA
REPRESENTED BY
INTELLIGENCE OFFICER,
NARCOTIC CONTROL BUREAU (NCB),
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BENGALURU ZONAL UNIT,
BENGALURU - 560 001.
... RESPONDENT
(BY SMT.SHRIDEVI M.BHOSALE, CGC)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH REGISTRATION OF CRIMINAL
PROCEEDINGS IN SPL.C.C.NO.2932/2023, ARISING OUT OF NCB
CR.NO.48/1/24/2023/BZU BY RESPONDENT NARCOTICS CONTROL
BUREAU PENDING BEFORE XXXIII ADDL. CITY CIVIL AND
SESSIONS JUDGE, NDPS SPECIAL COURT, BENGALURU CITY, FOR
THE OFFENCES P/U/S 8(c) R/W SEC. 22(c), 27, 27 A, 28 AND 29
OF NDPS ACT AS AGAINST THE PETITIONER.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 02.12.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner is before this Court calling in question
proceedings in Special C.C.No. 2932 of 2023 pending before XXXIII
Additional City Civil and Sessions Judge and Special Judge for NDPS
cases at Bengaluru and arising out of NCB Crime
No.48/1/24/2023/BZU registered by the respondent for offences
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punishable under Section 8(c) r/w Sections 22(c), 27, 27A, 28 and
29 of the Narcotic Drugs and Psychotropic Substances Act, 1985
('the Act' for short).
2. Heard Sri S.Mahesh, learned counsel appearing for the
petitioner and Smt. Shridevi M. Bhosale, learned Central
Government Counsel appearing for the respondent.
3. Facts in brief, germane, are as follows:-
On receipt of credible information of a post parcel sent from
Coimbatore to Marathalli Post Office, suspected of containing drugs,
was seized by the Narcotic Control Bureau ('NCB'), the respondent.
It drew up a mahazar, repacked the consignment with dummy
parcel and alleging that the petitioner is involved in the said receipt
of parcel took him into custody. The statement of accused No.3
and the petitioner were then recorded. The police, after
investigation, filed a charge sheet against 5 accused. The petitioner
is arrayed as accused No.2 for the afore-quoted offences.
Registration of crime is what has driven the petitioner to this Court
in the subject petition.
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4. The learned counsel Sri S.Mahesh appearing for the
petitioner would submit that his solitary contention in the case at
hand would be that it is in violation of Section 50A of the Act. It is
his submission that 'controlled delivery' as obtaining in Section 50A
of the Act must be undertaken by the designated officer. In the
case at hand, it is an admitted fact that it is not by the designated
officer. He would, therefore, contend that it has vitiated the
aftermath of initiation of crime and would seek that the petition be
allowed on the sole score of violation of Section 50A of the Act.
5. Per contra, the learned Central Government counsel
appearing for the NCB would vehemently refute the submissions to
contend that Section 50A which deals with power to undertake
controlled delivery uses the word 'may'. Since it is directory, it is
not mandatory that only the officer authorized by the NCB should
undertake controlled delivery. The learned counsel would submit
that there are plethora of circumstances in which investigation and
filing of charge sheet that pin down the petitioner. Therefore, the
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petitioner is guilty of the offence so alleged. She would seek
dismissal of the petition.
6. The learned counsel for the petitioner would join issue to
place reliance upon the judgment of the coordinate Bench while
granting bail. It is his submission that from the date of granting
bail till today, there is no other circumstance as bail is granted only
on the concept of controlled delivery. The learned counsel would
admit that if the issue of controlled delivery goes against the
petitioner it becomes a matter of trial and if the contention of
controlled delivery merits acceptance, the aftermath of registration
of crime would become illegal.
7. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
8. The afore-narrated facts are a matter of record. A
complaint is registered on 20-06-2023. It is the case of the
complainant that he received an information that a parcel
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containing suspected drugs would be received in Marathahalli
Colony Sub-Post Office, Bangalore. A team of NCB goes into the
post office, meets CW-5 Post Master, gives a request to hand over
the parcel and asks her to become an independent witness. The
complaint would further narrate that the Investigating Officer on
20-06-2023 requests the Post Master for delivery of a dummy
parcel which is designated to be delivered to one Junaid Hussain
Haveri, accused No.3 and later the parcel to be delivered from
Junaid Hussain Haveri to the petitioner. Since the entire issue now
revolves round Section 50A, I deem it appropriate to notice Section
50A of the Act. It reads as follows:
"50-A. Power to undertake controlled delivery.--
The Director General of Narcotics Control Bureau constituted
under sub-section (3) of Section 4 or any other officer
authorised by him in this behalf, may, notwithstanding
anything contained in this Act, undertake controlled delivery
of any consignment to--
(a) any destination in India;
(b) a foreign country, in consultation with the competent
authority of such foreign country to which
consignment is destined, in such manner as may be
prescribed."
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Section 50A permits carrying out of controlled delivery by the
Director General of NCB or any other officer authorised by him in
this behalf. The authorisation to the officer must be under Section
4 of the Act. Section 4 of the Act reads as follows:
"4. Central Government to take measures for
preventing and combating abuse of and illicit traffic in
narcotic drugs, etc.--(1) Subject to the provisions of this
Act, the Central Government shall take all such measures as
it deems necessary or expedient for the purpose of
preventing and combating abuse of narcotic drugs and
psychotropic substances and the illicit traffic therein and for
ensuring their medical and scientific use.
(2) In particular and without prejudice to the
generality of the provisions of sub-section (1), the measures
which the Central Government may take under that sub-
section include measures with respect to all or any of the
following matters, namely:--
(a) coordination of actions by various officers, State
Governments and other authorities--
(i) under this Act, or
(ii) under any other law for the time being in
force in connection with the enforcement of
the provisions of this Act;
(b) obligations under the International Conventions;
(c) assistance to the concerned authorities in foreign
countries and concerned international organisations
with a view of facilitating coordination and
universal action for prevention and suppression of
illicit traffic in narcotic drugs and psychotropic
substances;
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(d) identification, treatment, education, after care,
rehabilitation and social re-integration of addicts;
(da) availability of narcotic drugs and psychotropic
substances for medical and scientific use;
(e) such other matters as the Central Government
deems necessary or expedient for the purpose of
securing the effective implementation of the
provisions of this Act and preventing and
combating the abuse of narcotic drugs and
psychotropic substances and illicit traffic therein.
3) The Central Government may, if it considers it
necessary or expedient so to do for the purposes of this Act,
by order, published in the Official Gazette, constitute an
authority or a hierarchy of authorities by such name or
names as may be specified in the order for the purpose of
exercising such of the powers and functions of the Central
Government under this Act and for taking measures with
respect to such of the matters referred to in sub-section (2)
as may be mentioned in the order, and subject to the
supervision and control of the Central Government and the
provisions of such order, such authority or authorities may
exercise the powers and take the measures so mentioned in
the order as if such authority or authorities had been
empowered by this Act to exercise those powers and take
such measures."
Sub-section (3) of Section 4 directs constitution of an authority by
the Central Government with specified powers. Section 50A refers
to Section 4(3). It is the officer who has been authorised has to
undertake such controlled delivery. 'Controlled delivery' in the case
at hand is undertaken in the manner that is described hereinabove.
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9. The contention of the learned counsel for the petitioner is
that controlled delivery has to be mandatorily undertaken by the
Director General of NCB or an officer authorised by him. Here, the
respondent/Investigating Officer is neither the Director General nor
the officer authorised by him, has undertaken controlled delivery.
The issue now would be whether Section 50A of the Act is
mandatory insofar as it directs a particular officer or a particular
officer authorised by the Director General to be the only person to
undertake controlled delivery.
10. It becomes germane to notice the findings rendered by
the coordinate Bench while granting bail to the petitioner. The
findings would lend necessary support the contention of learned
counsel for the petitioner coordinate Bench in the case of
MR.JUNAID HUSSAIN HAVERI v. UNION OF INDIA1, has held
as follows:
".... .... ....
10. Section 50A of the NDPS Act provides the power to
undertake "controlled delivery". Section 50A of the NDPS Act
reads as follows:-
1
Criminal Petition No.6853 of 2023 and connected cases decided on 12th
September, 2023
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"[50A. Power to under take controlled delivery.-
The Director General of Narcotics Control Bureau constituted
under subsection (3) of section 4 or any other officer authorised
by him in this behalf, may, notwithstanding anything contained
in this Act, undertake controlled delivery of any consignment
to--
(a) any destination in India;
(b) a foreign country, in consultation with the
competent authority of such foreign country to which
such consignment is destined, in such manner as
may be prescribed.]"
11. From a reading of the aforesaid provisions of law,
it is very clear that, exercise of "controlled delivery" which is
a investigative tool is undertaken by the investigating
officers who are authorised as provided under section 50A of
the NDPS Act with a view to identifying the persons involved
in the commission of the offence under the NDPS Act.
12. Learned Senior Counsel appearing for
accused No.3 has raised a specific contention that
requirements of Section 50A of the NDPS Act has not
been complied with by the NCB officers before
undertaking the exercise of "controlled delivery". He
submits that, the officers were not authorised under
Section 50A of the NDPS Act and therefore, it cannot
be said that the accused persons were identified.
13. Learned counsel appearing for respondent
has failed to demonstrate before this court that, the
officers who had undertaken the exercise of
"controlled delivery" with the help of postman and
post master of Marathahalli sub post office were
authorised as provided under section 50A of the NDPS
Act. In the absence of authorization as provided under
Section 50A of the NDPS Act which is the mandatory
requirement of law, it cannot be said that exercise of
"controlled delivery" undertaken by the NCB officers
had successfully led them to identify the persons
involved in the commission of offence under NDPS Act.
The NCB officers have recorded the delivery
proceedings of dummy parcel of speed post on
20.06.2023 at 17 hours. A perusal of the said report
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would indicate that, there is no mention about
authorization under section 50A of the NDPS Act
obtained by the officers before undertaking the
"controlled delivery" mechanism. In fact, from reading
of the delivery proceedings it is seen that immediately
after the consignment was opened by the NCB officers
in the post office, they had requested the postmaster
to designate postman for the purpose of "controlled
delivery" exercise. In addition to the same, the
exercise of "controlled delivery" was undertaken by
the NCB only as against accused Nos.2 and 3. Though
it is the specific case of the prosecution that the
consignment was booked by accused No.1 through
accused No.2 in the name of accused No.3, the
exercise of "controlled delivery" was not undertaken
by the NCB officers as against accused No.1 for the
reasons best known to them.
.... .... ....
23. There is also no material to show that
accused Nos.2 and 3 had the knowledge that the
consignment/parcel which was booked by accused
No.1 contain contained narcotic drugs/psychotropic
substance. Since the consignment/parcel was opened
even before it was delivered to the addressee and the
contraband article found in the consignment/parcel
was seized under a panchanama in the absence of
accused, the only option open for the NCB officers to
connect the accused to the crime was by identifying
them through the technique known as "controlled
delivery". However, since the NCB officers have not
complied with mandatory requirements of section 50A
of the NDPS Act before undertaking the exercise of
"controlled delivery", the report of "controlled
delivery" on which reliance has been placed by the
prosecution cannot be considered since the exercise of
"controlled delivery" gets vitiated for non-compliance
of the mandatory requirement under section 50A of
the NDPS Act."
(Emphasis supplied)
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The coordinate Bench granting bail clearly holds that panchanama
would indicate that NCB has not complied with the mandatory
requirements of Section 50A before undertaking the exercise of
controlled delivery and non-compliance of Section 50A would vitiate
entire proceedings. The said order granting bail, as on today has
become final.
11. I am in complete agreement with the reasons so rendered
by the coordinate Bench while granting bail. Since the only
submission made by the learned counsel appearing for the
petitioner was with regard to controlled delivery and that having
found favour with the petitioner, all further proceedings in the
aftermath of undertaking controlled delivery, would become
contrary to law, and lead to obliteration of the crime against the
petitioner.
12. For the aforesaid reasons, the following:
ORDER
(i) Criminal Petition is allowed. 13
(ii) Proceedings in Special C.C. No.2932 of 2023 pending before the XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS Cases at Bangalore arising out of NCB Crime No.48/1/24/2023/BZU of Narcotics Control Bureau stand quashed qua the petitioner.
(iii) It is made clear that the observations made in the course of the order are only for the purpose of consideration of the case of petitioner under Section 482 of Cr.P.C. and the same shall not bind or influence the proceedings against any other accused pending before the concerned Court.
SD/-
____________________ JUSTICE M.NAGAPRASANNA Bkp CT:MJ