Karnataka High Court
Afroz @ Afroz Pasha vs The State Of Karnataka on 9 August, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 07.06.2024
Pronounced on : 09.08.2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.9966 OF 2023 (GM-RES)
BETWEEN:
AFROZ @ AFROZ PASHA
S/O SHEIK AMEER JAN
AGED ABOUT 42 YEARS
RESIDING AT BEDI COLONY
KALAYANAGIRI, MYSURU TOWN
MYSURU - 570 001.
... PETITIONER
(BY SRI R. K. MAHADEVA, ADVOCATE)
AND:
1 . THE STATE OF KARNATAKA
THE STATION HOUSE OFFICER
MANDI POLICE STATION
NARASIMHARAJA SUB-DIVISION
MYSURU CITY - 570 001.
2 . POLICE SUB - INSPECTOR
MANDI POLICE STATION
NARASIMHARAJA SUB - DIVISION
MYSURU - 570 001.
... RESPONDENTS
(BY SRI RAHUL CARIAPPA K.S., AGA)
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
THE CR.P.C., PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN
RESPECT OF THIS PETITIONER IN CC NO. 37288/2022 (IS ARISING
OUT OF CRIME NO. 33/2022) OF MANDI POLICE STATION,
NARASIMHARAJA SUB-DIVISION, MYSURU CITY FOR THE ALLEGED
OFFENCE PUNISHABLE U/S 20(B)(II)(A) OF THE NARCOTIC DRUGS
AND PSYCHOTROPIC SUBSTANCES ACT, 1985 AGAINST THE
PETITIONER PENDING ON THE FILE OF HONBLE III ADDITIONAL
CIVIL JUDGE AND JMFC AT MYSURU VIDE ANNX-L.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 07.06.2024, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner/accused No.2 is before this Court calling in
question proceedings in C.C.No.37288 of 2022 arising out of crime
No.33 of 2022 registered for offences punishable under Section
20(b)(ii)(A) of the Narcotic Drugs and Psychotropic Substances Act,
1985 ('the Act' for short) insofar it concerns him.
2. Heard Sri R. K. Mahadeva, learned counsel appearing for
the petitioner and Sri Rahul Cariappa K. S., learned Additional
Government Advocate for the respondents.
3
3. Facts, in brief, germane are as follows:-
It is the case of the prosecution that on 15-03-2022 at about
4.00 p.m. 2nd respondent received a credible information that one
person by name Shabhaj was transporting ganja to sell near
Puthahli Park, near Highway Circle, Mysore. It is the further case
that the Police obtained necessary permission to conduct a search
on the body of Shabhaj and prepared a report registering a suo
motu case against the said person. On that basis Shabhaj was
searched and was found in possession of 700 gms. of ganja leaves,
further seized four notes of hundred rupees and a note of rupees
ten and prepared a seizure panchanama and registered a crime
against Shabhaj in Crime No.33 of 2022 for the aforesaid offence.
Shabhaj is arrayed as accused No.1. At the time of registration of
the crime, the petitioner was not in the picture. The Police conduct
investigation, the result of investigation leads to filing of the charge
sheet. It is in the charge sheet the petitioner is drawn as accused
No.2. Filing of the charge sheet is what has driven the petitioner to
this Court in the subject petition.
4
4. The learned counsel appearing for the petitioner would
vehemently contend that the procedure under the Act is blatantly
violated by the prosecution in the conduct of investigation, search
or drawing the name of the petitioner into the charge sheet. He
would seek to place reliance on the orders passed by the co-
ordinate Benches of this Court to buttress his submission that the
issue in the lis stands answered in the said orders in the cases of:
(i) MARTIN JAYAKAR v. STATE OF KARNATAKA1 (ii) AFROZ
PASHA @ AFROZ v. THE STATE OF KARNATAKA2 and
(iii) MRUTHYUNJAYA v. THE STATE OF KARNATAKA3. By
placing reliance upon the aforesaid orders the learned counsel
would further add that the petitioner has been drawn into the
charge sheet without there being any independent material against
him, but based upon voluntary statement of accused No.1.
Therefore, he would seek quashment of proceedings qua
petitioner/accused No.2.
5. The learned High Court Government Pleader would refute
the submissions to contend that the petitioner is known to be in the
1
Criminal petition No.6916 of 2016 decided on 19-10-2016
2
Criminal Petition No.8089 of 2016 decided on 05-11-2016
3
Criminal Petition No.10054 of 2017 decided on 21-09-2022
5
business of selling ganja and it is not for the first time that he has
been arrayed as an accused. On the credible information received
by the Police, the search was conducted on accused No.1 and was
found in possession of 700 gms of ganja leaves and it is he who
reveals the name of the petitioner for having handed over ganja to
him to sell. It is a matter of evidence that the petitioner has to
come out clean in the light of the offence being under the Act. The
learned High Court Government Pleader would further contend that
this Court is generally slow in interfering with the proceedings in
which charge sheet has been filed against the accused on abundant
material.
6. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
7. The afore-narrated facts are not in dispute. On
15-03-2022 accused No.1 is searched after registration of a case
against him in Crime No.33 of 2022 for offences punishable under
Section 20(b)(ii)(A) of the Act. The credible information so
6
received was that one person would be holding a plastic carry bag
in his hand and his name is Shabhaj who is wanting to sell ganja at
Puthahli Park, near Highway Circle, Mysore. The search resulted in
seizure of 700 gms of ganja and `410/- from the hands of accused
No.1. As observed hereinabove, the crime comes to be registered
in Crime No.33 of 2022 on 15-03-2022. The accused was Shabhaj
alone. Shabhaj was questioned. On him questioning, Shabhaj
reveals the name of the petitioner as the person who had given him
ganja for sale. The investigation then leads to filing of the charge
sheet on 20-08-2022 in C.C. No.37288 of 2022. The offences
alleged was the one punishable under Section 20(b)(ii)(A) of the
Act. The summary of the charge sheet as obtaining in Column
No.17 reads as follows:
"17. Brief facts of the case
¢£ÁAPÀ:15.03.2022 gÀAzÀÄ ¸ÀAeÉ 4.00 UÀAmÉAiÀÄ°è ªÉÄʸÀÆgÀÄ £ÀUÀgÀ, ªÀÄAr ¥Éưøï
oÁuÁ ¸ÀgÀºÀzÀÄÝ ºÉʪÉà ¸ÀPÀð®ß, ¥ÀÄvÀÜ° ¥ÁPÀgï §½ F zÉÆõÁgÉÆÃ¥Àt ¥ÀvÀæzÀ PÁ®A
£ÀA 12 gÀ°è PÀAqÀ DgÉÆæ UÁAeÁªÀ£ÀÄß vÀ£Àß ªÀ±ÀzÀ°èlÄÖPÉÆAqÀÄ ªÀiÁgÁl
ªÀiÁqÀ®Ä/¸ÁUÁtÂPÉ ªÀiÁqÀ®Ä §gÀÄwÛzÁÝ£ÉAzÀÄ ¸ÁQë-01 gÀªÀjUÉ ¨ÁwäzÁgÀjAzÀ RavÀ
ªÀiÁ»w §A¢zÀÄÝ, CzÀgÀAvÉ ¸ÁQë-2 ªÀÄvÀÄÛ ¸ÁQë-3 gÀªÀgÀ£ÀÄß ¥ÀAZÀgÀ£ÁßV
§gÀªÀiÁrPÉÆAqÀÄ ¸ÁQë-7, ¸ÁQë-8 ªÀÄvÀÄÛ ¸ÁQë-9 gÀªÀgÉÆqÀ£É ªÉÄîÌAqÀ ¸ÀܼÀPÌÉ
ºÉÆÃUÀÄwÛzÀÝAvÉ DgÉÆæ-1 Nr ºÉÆÃUÀ®Ä ¥ÀæAiÀÄwß¹zÀÄÝ, ¸ÁQë-7 ªÀÄvÀÄÛ ¸ÁQë-8 gÀªÀgÄÀ
»rzÀÄPÉÆArzÀÄÝ, ¸ÁQë-4 gÀªÀgÀ£ÀÄß ¸ÀܼÀPÉÌ UÉeÉmÉqï C¢üPÁjAiÀiÁV §gÀªÀiÁrPÉÆAqÀÄ,
¸ÁQë-4 gÀªÀgÀÄ ¸ÁQë-01 ªÀÄvÀÄÛ ¸ÁQë-2 ¸ÀªÀÄPÀëªÀÄ ¸ÁQë-8 gÀªÀjAzÀ J1 gÀªÀgÀ
CAUÀ±ÉÆÃzsÀ£É £ÀqɸÀ¯ÁV ¥ÁåAn£À §® eÉé£À°è UÁAeÁ ªÀiÁgÁl ªÀiÁrzÀ ºÀt
gÀÆ.410/- ªÀÄvÀÄÛ PÁåj¨ÁåUÀß°èzÀÝ 640 UÁæA vÀÆPÀzÀ J¯É, MtVzÀ ©Ãd ªÀÄvÀÄÛ ¸ÀtÚ¸ÀtÚ
gÉA¨ÉUÀ¼ÀÄ, ºÀÆ«¤AzÀ PÀÆrzÀ ©r UÁAeÁªÀ£ÀÄß ªÀ±À¥Àr¹PÉÆArzÀÄÝ, UÁAeÁ §UÉÎ
7
«ZÁgÀ ªÀiÁqÀ¯ÁV J2 gÀªÀjAzÀ UÁAeÁªÀ£ÀÄß Rjâ ªÀiÁr ªÀiÁqÀÄwÛgÀĪÀÅzÁV
£ÀÄr¢gÀĪÀÅzÀÄ ªÀÄvÀÄÛ J2 gÀªÀgÀÄ J1 gÀªÀjUÉ UÁAeÁ ªÀiÁgÁl ªÀiÁrgÀĪÀÅzÀÄ ºÁUÀÆ
DgÉÆæUÀ¼ÀÄ CPÀæªÀÄ ºÀt ¸ÀA¥ÁzÀ£É ªÀiÁqÀĪÀ GzÉÝñÀ¢AzÀ UÁAeÁ ªÀiÁgÁl
ªÀiÁrgÀĪÀÅzÀÄ vÀ¤SɬÄAzÀ zÀÈqÀ¥ÀnÖgÀÄvÀÛzÉ. DzÀÄzÀjAzÀ DgÉÆæUÀ¼À «gÀÄzÀÞ ªÉÄîÌAqÀ
PÀ®AUÀ¼À jÃvÁå F zÉÆõÀgÉÆÃ¥Àt ¥ÀvÀæªÀ£ÀÄß ¸À°è¹zÉ.
A perusal at the summary of the charge sheet would indicate that a
body search was conducted on accused No.1. He was found in
possession of 640 gms of ganja and `410/-. The quantity of ganja
included ganja leaves, stem and flowering of the plant. On
investigation it was revealed that accused No.1 had purchased
ganja from accused No.2. Therefore it is a conspiracy to make
money out of illegal selling of the substance.
8. The learned counsel for the petitioner, as observed
hereinabove, has projected twin illegalities in the case at hand. The
first being that, it is contrary to Section 50 of the Act, as search and
seizure of the body is not in accordance with what is depicted under
Section 50 of the Act. Therefore, it becomes germane to notice
Section 50 of the Act which reads as follows:
"50. Conditions under which search of persons shall
be conducted.--(1) When any officer duly authorised under
Section 42 is about to search any person under the provisions of
Section 41, Section 42 or Section 43, he shall, if such person so
requires, take such person without unnecessary delay to the
8
nearest gazetted officer of any of the departments mentioned in
Section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the
person until he can bring him before the gazetted officer or the
Magistrate referred to in sub-section (1).
(3) he gazetted officer or the Magistrate before whom any
such person is brought shall, if he sees no reasonable ground for
search, forthwith discharge the person but otherwise shall direct
that search be made.
(4) No female shall be searched by anyone excepting a
female.
(5) When an officer duly authorised under Section 42 has
reason to believe that it is not possible to take the person to be
searched to the nearest Gazetted Officer or Magistrate without
the possibility of the person to be searched parting with
possession of any narcotic drug or psychotropic substance, or
controlled substance or article or document, he may, instead of
taking such person to the nearest Gazetted Officer or
Magistrate, proceed to search the person as provided under
Section 100 of the Code of Criminal Procedure, 1973.
(6) After a search is conducted under sub-section (5), the
officer shall record the reasons for such belief which
necessitated such search and within seventy-two hours send a
copy thereof to his immediate official superior."
Section 50 mandates conditions under which search of persons
should be conducted. The seizure panchanama is appended to the
petition. The seizure panchanama clearly indicates that it is in
complete compliance with Section 50 of the Act. Permission from
the higher authorities is taken prior to conduct of body search upon
accused No.1. Accused No.1 is apprehended in the presence of
9
panchas. He is searched and ganja is seized from him by a
Gazetted Officer. Therefore, the contention that it is in violation of
Section 50 of the Act tumbles down. The reliance placed by the
learned counsel for the petitioner on the judgment rendered by the
coordinate Bench of this Court in the case of MRUTHYUNJAYA
(supra) would not become applicable to the case at hand, as in the
said case the search conducted was completely contrary to Section
50 of the Act. Therefore, the Court had to come down heavily upon
the prosecution for not following the mandate of the statute. The
same was the observation by another coordinate Bench in MARTIN
JAYAKAR's case (supra). In the considered view of the Court, since
the impugned action is in consonance with Section 50 of the Act,
the submission is rendered unacceptable. Thus, falls the first
ground.
9. The second ground urged by the learned counsel for the
petitioner is that, the contraband substance ganja in the case at
hand, is an amalgam of neutral substance like the stem and other
leaves, and therefore the quantity that is seized i.e., 640 gms being
inclusive of those neutral substance, has rendered the seizure itself
10
illegal qua the quantity, is again a submission that is unacceptable.
It becomes apposite to refer to the judgment of the Apex Court in
the case of HIRA SINGH v. UNION OF INDIA4 wherein the
Apex court has held as follows:
"12.1. The decision of this Court in E. Micheal Raj [E.
Micheal Raj v. Narcotics Control Bureau, (2008) 5 SCC 161 :
(2008) 2 SCC (Cri) 558] taking the view that in the mixture of
narcotic drugs or psychotropic substance with one or more
neutral substance(s), the quantity of the neutral substance(s) is
not to be taken into consideration while determining the small
quantity or commercial quantity of a narcotic drug or
psychotropic substance and only the actual content by weight of
the offending narcotic drug which is relevant for the purpose of
determining whether it would constitute small quantity or
commercial quantity, is not a good law.
12.2. In case of seizure of mixture of narcotic drugs or
psychotropic substances with one or more neutral substance(s),
the quantity of neutral substance(s) is not to be excluded and to
be taken into consideration along with actual content by weight
of the offending drug, while determining the "small or
commercial quantity" of the narcotic drugs or psychotropic
substances."
The Apex Court holds that in case of seizure of mixture of narcotic
drugs or psychotropic substances with one or more neutral
substances, the quantity of such neutral substance is not to be
excluded and to be taken into consideration along with actual
content by weight of the offending drug. The judgment of the Apex
4
(2020) 20 SCC 272
11
Court in the case of HIRA SINGH (supra) is followed by a
coordinate Bench of this Court in RANGAPPA v. STATE5 wherein
the coordinate Bench has held as follows:
"10. In this regard, the Hon'ble Supreme Court in case of
HIRA SINGH AND ANOTHER VS. UNION OF INDIA AND
ANOTHER reported in (2020) 20 SCC 272, at para 12.1 and
12.2, has observed as under:
"12.1. The decision of this Court in E. Micheal Raj
taking the view that in the mixture of narcotic drugs or
psychotropic substance with one or more neutral
substance(s), the quantity of the neutral substance(s) is not
to be taken into consideration while determining the small
quantity or commercial quantity of a narcotic drug or
psychotropic substance and only the actual content by weight
of the offending narcotic drug which is relevant for the
purpose of determining whether it would constitute small
quantity or commercial quantity, is not a good law.
12.2. In case of seizure of mixture of narcotic drugs or
psychotropic substances with one or more neutral
substance(s), the quantity of neutral substance(s) is not to be
excluded and to be taken into consideration along with actual
content by weight of the offending drug, while determining
the "small or commercial quantity" of the narcotic drugs or
psychotropic substances."
11. Therefore, considering the above, I am of the view
that for determining the weight of ganja, to bring under the
small or medium or commercial quantity, it cannot be bifurcated
by removing seeds and leaves and it cannot be a ground for
quashing the criminal proceedings, when the FSL report was
issued stating that the result of chemical analysis is positive of
the ganja. Therefore, even for the purpose of considering the
bail application, if the commercial quantity of ganja is seized,
the accused cannot plead to bring under the medium quantity
claiming that it is not a commercial quantity by excluding the
seeds and leaves as per the judgment of the Hon'ble Supreme
5
Criminal Petition No.11678 of 2022 decided on 7-12-2022
12
Court of Hira Singh's case, stated supra. Therefore, it is not a
ground for quashing the criminal proceedings stating that seized
material is not that of ganja. Hence, the contention of the
petitioner is not sustainable under law and therefore, I hold that
the contents of seized material is ganja, that includes fruiting
tops, flower accompanying the seeds and leaves. Therefore, the
petition deserves to be dismissed."
In the light of the judgment rendered by the Apex Court in the case
of HIRA SINGH and that of the coordinate Bench in RANGAPPA's
case, the submission of the learned counsel for the petitioner that
the stem of ganja is also taken to add the weight loses all weight
and tumbles down.
10. The sheet anchor of the petitioner is that he is pinned
down on a statement given by accused No.1 and it is then the
petitioner is arrayed as accused No.2. According to the petitioner, it
is hit by Section 25 of the Evidence Act. In the case at hand, it is
the statement alone that led to drawing of the petitioner into the
web of these proceedings. This submission does merit acceptance,
as the Apex Court in the case of SURINDER KUMAR KHANNA v.
13
INTELLIGENCE OFFICER, DIRECTORATE OF REVENUE
INTELLIGENCE6 has held as follows:
"13. In the present case it is accepted that apart from
the aforesaid statements of co-accused there is no material
suggesting involvement of the appellant in the crime in
question. We are thus left with only one piece of material that is
the confessional statements of the co-accused as stated above.
On the touchstone of law laid down by this Court, such a
confessional statement of a co-accused cannot by itself be taken
as a substantive piece of evidence against another co-accused
and can at best be used or utilised in order to lend assurance to
the Court."
The Apex Court has held that apart from the aforesaid statement of
the co-accused there is no material suggesting involvement of the
appellant therein in the crime. Therefore, on a confessional
statement of the co-accused, drawing of the petitioner into the web
of crime was contrary to law.
11. In the case at hand it is a matter of record that the
petitioner was not arrayed as an accused, as the petitioner was not
searched or any material seized from him. It is on the statement of
accused No.1 who is caught with ganja confesses before the Police
that ganja was supplied to him by the petitioner/accused No.2.
6
(2018) 8 SCC 271
14
Barring this, there is no recovery from the petitioner nor any
incriminating material found against the petitioner in the subject
case. Therefore, the implication of the petitioner, on the
confessional statement of the co-accused, becomes bad in law. The
petitioner thus succeeds on this score and not on the other two
submissions that are projected by him, as observed hereinabove.
12. Therefore, holding that the proceedings in the case at
hand are in consonance with Section 50 of the Act and the quantity
of ganja including neutral substance does not vitiate such seizure,
the writ petition is to succeed, on the sole score that the petitioner
is implicated only on voluntary/confessional statement of co-
accused.
13. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed.
15(ii) The proceedings in C.C.No.37288 of 2022, arising from Crime No.33 of 2022, initiated against the petitioner/accused No.2 stand quashed.
(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 the other accused pending before any other fora.
Sd/-
(M. NAGAPRASANNA) JUDGE bkp CT:SS