Karnataka High Court
Sharath Jagannathan vs Union Of India on 6 June, 2024
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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CRL.P No. 8618 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION NO. 8618 OF 2023
BETWEEN:
SHARATH JAGANNATHAN
S/O SURESH JAGANNATHAN,
AGED ABOUT 31 YEARS
222 RACE-COURSE
COIMBATORE-641 018.
...PETITIONER
(BY SRI HASHMATH PASHA, SENIOR ADVOCATE FOR
SRI SHUJATH AHMED, ADVOCATE)
AND:
UNION OF INDIA
NARCOTICS CONTROL BUREAU
BENGALURU ZONAL UNIT
THROUGH INTELLIGENCE OFFICER-560 063.
Digitally signed by
...RESPONDENT
R HEMALATHA (BY SMT. SHRIDEVI BHOSALE MARUTI, ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA
THIS CRL.P IS FILED UNDER SECTION 482 OF THE CODE OF
CRIMINAL PROCEDURE, 1973 PRAYING THAT TO QUASH THE
PROCEEDINGS IN SPL.C.C.NO.723/2023, CCH-33 PENDING
BEFORE THE LEARNED XXXIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL JUDGE FOR NDPS ACT AT
BENGLAURU AGAINST THE PETITIONER AND ETC.,
THIS PETITION, COMING ON FOR FURTHER DICTATION,
THIS DAY, THE COURT MADE THE FOLLOWING:
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CRL.P No. 8618 of 2023
ORDER
The petitioner before this Court is sought to be prosecuted for the offences punishable under Section 8 (C) R/w Section 20 (b) (ii) (A), 27, 28, and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "NDPS"), and seeks to invoke Section 482 of Cr.P.C. to quash the proceedings in Spl.C.C.No.723/2023 on the file of the Addl. Sessions Judge and Special Judge (NDPS) Bengaluru.
2. The case of the prosecution is as follows:
On 19.10.2022, at around 12:05 hours, information was received from the Superintendent of Cargo, Cargo Intelligence Unit AP & ACC Commissioner, KIAL, Bangalore via official mail dated 19.10.2022, indicating that a parcel imported from Denmark via UPS Shipment was suspected to contain narcotic drugs. Acting on this information and after completing all prescribed procedures, the complainant seized the parcel in the presence of independent witnesses. Upon opening the parcel, it was found to contain 35.30 grams of hashish (charas), classified as a small quantity.
3. Subsequently, based on the address mentioned on the parcel, the consignee was identified and summoned under Section 67 of the NDPS Act on 21.10.2022 and 22.10.2022. In his voluntary statement, the petitioner admitted that he had procured the narcotic drugs on 12.10.2022 while he was in Copenhagen and had shipped the parcel through UPS Private Limited, paying 150 Euros for the shipment. Based on his confession, the petitioner was arrested, produced before the Superintendent, NCB along with the seized narcotic drug, and sent to judicial custody.
4. After investigation, the Intelligence Officer filed a complaint under relevant sections before the Special Judge for NDPS cases. The -3- NC: 2024:KHC:19673 CRL.P No. 8618 of 2023 learned Special Judge took cognizance of the offences based on the complaint filed under Section 8(c) read with Sections 20(ii)(A), 23(a), 27, 28, and 29 of the NDPS Act, 1985. Taking exception to this, the present petition has been filed.
5. Sri Hashmath Pasha, learned senior counsel representing the petitioner's counsel would submit that:
The petitioner sent a written reply dated 19.10.2022 to UPS Express Private Limited, the shipping agent/freight forwarder, stating that he did not recognize the consignment. The petitioner also sent an email on 19.10.2022 to the shipping agent, refusing to recognize the package and requesting its return to the sender.
6. There is no material evidence to substantiate that the petitioner had booked or procured the narcotic drug, except for the statement recorded under Section 67, which cannot be used as a confessional statement in the trial of an offence under the NDPS Act, as ruled by the Hon'ble Supreme Court in the case of Toofan Singh vs. State of Tamil Nadu (2021) 4 SCC 1.
7. The parcel suspected of containing narcotic drugs was opened and seized in the presence of independent witnesses and not from the physical possession of the petitioner. Therefore, in the absence of any corroborative evidence to substantiate that the petitioner had procured narcotic drugs, the complainant was mandatorily required to take recourse to Section 50-A of the NDPS Act to identify the involvement of the person in the commission of the offence. As this provision was not complied with, the search and seizure are vitiated.
8. Therefore, in the absence of any reasonable ground to establish that the petitioner had procured the narcotic drugs, the -4- NC: 2024:KHC:19673 CRL.P No. 8618 of 2023 prosecution of the petitioner for the aforesaid offences would constitute an abuse of the process of law.
9. In contrast, learned counsel for the respondent submits that the voluntary statement of the petitioner, coupled with the invoices issued by the Cargo office, clearly establish that the parcel was procured by the petitioner. The moment narcotic drugs enter the territorial waters of this country, they come under the ambit of "to import into India" as defined under Section 2(xxv) of the NDPS Act, which constitutes an offence punishable under Section 23 of the Act. Although the petitioner was not in physical possession of the subject drug, he nonetheless had control over it. Possession need not be physical but can be constructive. The materials collected during the course of the investigation clearly establish the commission of the offence by the petitioner, and therefore, the contention raised by the petitioner can be considered only after a full- fledged trial.
10. In support, she places reliance on the decisions of the Hon'ble Supreme Court in the cases of Guntwantlal vs. The State of Madhya Pradesh (1972) 2 SCC 194 and Madan Lal and Another vs. State of H.P. (2003) 7 SCC 465.
11. The submissions of the learned counsel for the parties are duly considered.
12. The issues that arise for consideration are as follows:
i) Whether physical possession of the contraband is 'sine qua non' to constitute an offence for importing a narcotic drug as stated under Section 8(c) and punishable under Section 23 of the NDPS Act?-5-
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ii) Whether the provision contained in Section 50-A of the Act is mandatory to establish the nexus between the consignor, the contraband, and the petitioner as the consignee?
iii) Whether the petitioner can be prosecuted solely on the basis of a statement recorded under Section 67 of the NDPS Act?
13. Issue No.(i):
Before addressing this issue, it is pertinent to cite the relevant provisions of the NDPS Act.
14. The phrase "to import into India" is defined under Section 2(xxv) of the NDPS Act, which reads thus:
"2(xxv) "to import into India", with its grammatical variations and cognate expressions, means to bring into India from a place outside India and includes the bringing into any port or airport or place in India of a narcotic drug or a psychotropic substance intended to be taken out of India without being removed from the vessel, aircraft, vehicle or any other conveyance in which it is being carried.
Explanation.--For the purposes of this clause and clause (xxvi), "India" includes the territorial waters of India"
15. Section 8 of the NDPS Act reads thus:
"8. Prohibition of certain operations.--No person shall-- (a) cultivate any coca plant or gather any portion of coca plant; or (b) cultivate the opium poppy or any cannabis plant; or (c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in -6- NC: 2024:KHC:19673 CRL.P No. 8618 of 2023 the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation:
16. Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf:
[Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.]"
17. The Hon'ble Supreme Court in the case of Madan Lal -vs- HP (AIR 2003 SC 3642), while dismissing an appeal against conviction under Section 20 of the NDPS Act, made a reference to the judgment in Gunwantlal v State of MP (AIR 1972 SC 1756) and observed as hereunder Para 24 - "...possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power and control."
Para 26 - "Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is -7- NC: 2024:KHC:19673 CRL.P No. 8618 of 2023 within his special knowledge. Section 35 of the (NDPS) Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles."
18. The Hon'ble Supreme Court in the case of Mohan Lal -vs- State of Rajasthan (AIR 2015 SC 2098 / 2015 6 SCC 222) while affirming the conviction of the appellant under Section 18 of the NDPS Act, had noted the fine distinction between the actual and constructive possession as corpus or physical control and animus or intent which has reference to the exercise of the said control. It further held that a possessory right will continue unless evidence on record indicates that possessor had been divested of it.
19. The Apex Court further opined that it can be inferred on a bare reading of Section 35 (2) of the NDPS Act that strict proof of knowledge of fact is imperative to invoke presumption of culpable mental state, which is extracted hereunder -
"For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by preponderance of possibility."
20. The Hon'ble Supreme Court has time and again in a catena of cases viz. Seema Silk and Sarees -vs- Directorate of Enforcement 2008 7 SCALE 624; Noor Aga Khan v State of Punjab 2008 16 SCC 417; Dharampal Singh -vs- State of Punjab 2010 9 SCC 608 Naresh Kumar alias Nitu -vs- State of Himachal Pradesh 2017 15 SCC 684; Tofan Singh -vs- State of Tamil Nadu AIR 2020 SC 5592 that the reverse burden of proof placed on the accused is merely procedural in -8- NC: 2024:KHC:19673 CRL.P No. 8618 of 2023 nature and a rebuttable one. However, the reverse burden placed on the accused is on the anvil of heightened degree of proof of foundational facts establishing guilt of the accused, as to be adduced by the prosecution. Thus the initial burden exists on the prosecution and that only when it stands satisfied (on evidence and not mere suspicion), does the legal burden to dispel the charges shifts on the accused. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution, as the prosecution must present proof of culpability beyond all reasonable doubt, whereas the standard of proof for the accused to disprove the charges leveled against him is only preponderance of possibility.
21. A reading of the definition and the provision contained in Section 8, along with the legal principles established by the Apex Court regarding constructive possession, indicates that the moment a narcotic drug or psychotropic substance is brought within the territorial waters of India, a person is said to have committed an offence under Section 23 if constructive possession can be proved. Constructive possession requires that the person has power and control over the narcotic drugs; there is no requirement for the person who procured the consignment to be in physical possession.
22. Issue No.(ii):
The parcel containing narcotic drugs was imported from Copenhagen, Denmark. The consignment was purportedly dispatched by Mr. Arjun Uppal from Denmark through UPS Express Private Limited, destined for the petitioner's address in Coimbatore.
23. The freight forwarder sent a message on 13.10.2022 requesting KYC documents for confirmation regarding the parcel. Since the petitioner was on vacation in the UK, the Executive Assistant of the -9- NC: 2024:KHC:19673 CRL.P No. 8618 of 2023 petitioner's company tried to contact him but was unable to reach him. Subsequently, the photocopy of the passport, which was available in the office, was uploaded without the petitioner's consent, thinking that it was a routine task. This was a common occurrence, as parcels frequently arrived addressed either to the company or directly to the petitioner. This is evident from the statement of the Executive Assistant of the petitioner's company recorded by the complainant.
24. On 19.10.2022, the petitioner sent an email to the freight forwarder stating that he had received notifications for a parcel that he had not ordered or requested and asked that the parcel be returned to the sender.
25. The parcel, suspected to contain narcotic drugs, was intercepted by the complainant on 19.10.2022 in the presence of independent witnesses, and a mahazar was drawn at KIAL. Upon opening the parcel, it was found to contain 35 grams of hashish. The narcotic drug was not seized from the physical possession of the petitioner; therefore, the prosecution had to establish the constructive possession of the narcotic drugs either by adopting the technique of controlled delivery under Section 50-A of the NDPS Act or through the discovery or recovery of corroborative evidence to substantiate that the petitioner was in constructive possession.
26. Section 50-A reads thus:
"[50A. 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
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NC: 2024:KHC:19673 CRL.P No. 8618 of 2023 of such foreign country to which such consignment is destined, in such manner as may be prescribed.]"
27. Controlled delivery is defined under Section 2(viib), and it means the technique of allowing illicit or suspect consignments of narcotic drugs, psychotropic substances, controlled substances or substances substituted for them to pass out of, or through or into the territory of India with the knowledge and under the supervision of an officer empowered in this behalf or duly authorized under Section 50A with a view to identifying the persons involved in the commission of an offence under this Act.
28. Controlled delivery is a technique where the consignment suspected of containing narcotic drugs is not seized but its movement is monitored by the agency, allowing it to be delivered to the consignee. Upon the consignee recognizing the consignment and voluntarily receiving it, the authorities can intervene. Another technique of controlled delivery involves sending a dummy parcel to the suspected consignee and, upon the latter recognizing and voluntarily receiving it, an authorized officer under Section 42 of the NDPS Act discloses their identity and seizes the consignment in the presence of independent witnesses.
29. A conjoint reading of the technique of controlled delivery and Section 50A indicates that the prosecution can undertake the technique of controlled delivery to identify the person involved in the commission of offences under the NDPS Act under the following circumstances:
i) When the narcotic drug seized is not from the physical possession of the perpetrator.
ii) In the absence of corroborative evidence to establish that the petitioner procured the narcotic drug.
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30. The complainant made an effort to undertake the technique of controlled delivery as stated under Section 50-A of the NDPS Act. Accordingly, on 20.10.2022, the Executive Assistant received a call from the freight forwarder to come and collect a parcel that had arrived from abroad in the name of the petitioner. She replied stating that she required confirmation from the petitioner, her employer, but was unable to confirm since the petitioner was busy with meetings. On 21.10.2022, she informed the petitioner about the parcel, and he stated that the parcel did not belong to him and that he had not booked it. Subsequently, she received another call from the freight forwarder on the same day, asking her to receive the parcel, to which she replied that the parcel did not belong to the petitioner.
31. The complainant, having failed in his attempt to identify the person involved in the commission of the offence, was required to establish the prosecution case by discovering or recovering any incriminating material.
32. Issue No.(iii):
The parcel containing the narcotic drug was intercepted on 19.10.2022, and the narcotic drug was seized on the same day in exercise of the power under Section 42 of the NDPS Act. Subsequently, the petitioner was summoned on 22.10.2022, and his statement was recorded purportedly under Section 67(c) of the NDPS Act. Section 67(c) of the NDPS Act allows for the recording of voluntary statements. Based on the voluntary statement, the complainant arrested the petitioner under the authority of Section 42 of the NDPS Act and produced him, along with the seized articles, before the Superintendent, NCB, who is invested with the powers of an officer in charge of a police station for investigation of offences under this Act, as stated under Section 53 of the NDPS Act.
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33. Thereafter, the Investigating Officer produced the petitioner before the learned Special Judge on 23.10.2022. The learned Special Judge remanded the petitioner to judicial custody.
34. After the petitioner was sent to judicial custody, a search warrant was obtained, and the Investigating Officer, along with the NCB team, searched the house of the petitioner, but no incriminating evidence was found.
35. Based solely on the voluntary statement recorded under Section 67 of the NDPS Act, the complaint was lodged by the authorized officer. The learned Special Judge took cognizance of the aforesaid offence.
36. The primary issue is whether the petitioner, in the absence of any corroborative evidence, can be prosecuted solely on the basis of his voluntary statement recorded under Section 67 of the NDPS Act.
37. In the case of Toofan Singh (supra), the Apex Court with reference to Section 67 of the NDPS Act, and its admissibility in evidence ruled as follows:
Para "66. This becomes even clearer when Section 52(3) of the NDPS Act is read. Under Section 52(3), every person arrested and article seized under Sections 41 to 44 shall be forwarded without unnecessary delay either to the officer in charge of the nearest police station, who must then proceed to "investigate" the case given to him, or to the officer empowered under Section 53 of the NDPS Act, which officer then "investigates" the case in order to find out whether an offence has been committed under the Act. It is clear, therefore, that Section 67 is at an antecedent stage to the "investigation", which occurs after the officer concerned under Section 42 has "reason to believe", upon
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NC: 2024:KHC:19673 CRL.P No. 8618 of 2023 information gathered in an enquiry made in that behalf, that an offence has been committed.
Para 67. Equally, when we come to Section 67(c) of the NDPS Act, the expression used is "examine" any person acquainted with the facts and circumstances of the case. The "examination" of such person is again only for the purpose of gathering information so as to satisfy himself that there is "reason to believe" that an offence has been committed. This can, by no stretch of imagination, be equated to a "statement" under Section 161 CrPC, as is argued by Shri Lekhi, relying upon Sahoo v. State of U.P. [Sahoo v. State of U.P., (1965) 3 SCR 86 : AIR 1966 SC 40 : 1966 Cri LJ 68] (at p. 88), which would include the making of a confession, being a sub-species of "statement".
Para 68. The consequence of accepting Shri Lekhi's argument flies in the face of the fundamental rights contained in Articles 20(3) and 21, as well as the scheme of the NDPS Act, together with the safeguards that have been set out by us hereinabove. First and foremost, even according to Shri Lekhi, a police officer, properly so called, may be authorised to call for information, etc. under Section 67, as he is an officer referred to in Section 42(1). Yet, while "investigating" an offence under the NDPS Act i.e. subsequent to the collection of information, etc. under Section 67, the same police officer will be bound by Sections 160-164 CrPC, together with all the safeguards mentioned therein -- firstly, that the person examined shall be bound to answer truly all questions relating to such case put to him, other than questions which would tend to incriminate him; secondly, the police officer is to reduce this statement into writing and maintain a separate and true record of this statement; thirdly, the statement made may be recorded by audio-video electronic means to ensure its genuineness; and fourthly, a statement made by a woman can only be made to a woman police officer or any woman officer. Even after all these safeguards are met, no such statement can be used at any inquiry or trial, except for the purpose of contradicting such a witness in cross- examination.
Para 158. We answer the reference by stating:
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NC: 2024:KHC:19673 CRL.P No. 8618 of 2023 Para 158.1. That the officers who are invested with powers under Section 53 of the NDPS Act are "police officers" within the meaning of Section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.
Para 158.2. That a statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act."
38. What is apparent from the ratio enunciated by the Apex Court in the case of Toofan Singh (supra) is summarized as follows:
i) The statement recorded under Section 67 is antecedent stage to the investigation which occurs after the concerned officer under Section 42 has "reason to believe", upon information gathered in an enquiry made in that behalf.
ii) The purpose of recording statements under Section 67 is to gather information to satisfy that there is reason to believe that the offence has been committed.
iii) The officers invested with power under Section 53 of the NDPS Act are police officers within the meaning of Section 25 of the Evidence Act.
iv) The statement recorded under Section 67 cannot be used as a confessional statement in the trial of an offence under the NDPS Act.
39. In light of the aforementioned principles of law established by the Apex Court, the primary issue needs to be addressed.
40. As observed in the preceding paragraphs, there was no recovery of the subject drugs from the petitioner, either from his physical
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NC: 2024:KHC:19673 CRL.P No. 8618 of 2023 or constructive possession. The petitioner is sought to be prosecuted solely on the basis of his voluntary statement. The Apex Court has ruled that a statement recorded under Section 67 cannot be used as a confessional statement in the trial. Based solely on the voluntary statement provided, there is no discovery or evidence suggesting that the petitioner has procured narcotic drugs. Additionally, there has been no recovery of any material that could be considered incriminating. The absence of such evidence implies that the statement alone does not establish any connection to the alleged offence.
41. The petitioner cannot be subjected to trial solely on the basis of a confessional statement. If the petitioner is subjected to trial, it would be a futile exercise in the absence of any corroborative evidence, since the probability of conviction is remote and bleak. Therefore, the continuation of the criminal proceedings would be an abuse of the process of law.
42. Section 67 reads thus:
"Power to call for information, etc.- Any officer referred to in section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provisions of this Act,-
(a) Call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder;
(b) Require any person to produce or deliver any document or thing useful or relevant to the enquiry;
(c) Examine any person acquainted with the facts and circumstances of the case."
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43. The petitioner in his voluntary statement recorded under Section 67 of the NDPS is extracted as is alleged to have confessed as follows:
Question - "Give the details about the Parcel bearing AWR No. 1Z1073XR0448978148, shipments were imported from Denmark through M/s UPS Express Pvt Ltd, destined to Shri Sharath Jagannathan, Coimbatore, what is your say about this parcel?"
Confession Statement - "Sir, I have booked this parcel on 12th October, 2022, while I went on vacation at (to) Copenhagen. I booked this parcel at Copenhagen at Fedex, further; this parcel was shipped through UPS Express Pvt Ltd as per option provided by (the) Fedex office at Copenhagen. I have paid around 150 Euros for the shipment."
Question - "When did you again contact UPS Express PVt Ltd?"
Confession Statement - "Sir, after conversation through mail dated 19.10.2022 at 07.14 AM, again spoke to the customer care of UPS Express Pvt Ltd namely Aditya at around 09.00 AM, where he advised me to give a written request through mail to UPS under copy to the supervisor, which is reproduced as under -
"I just spoke to your customer care executive Mr. Aditya explaining that I did not request a package and that it's probably a mistake. Aditya requested that I write to you as well mentioning the same and that he will probably update his records. You can return or keep aside the package as this is something that I do not recognize Sent from my IPhone.""
44. In view of the above facts and circumstances, I pass the following:
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ORDER
i) The petition is allowed.
ii) The impugned proceedings in Spl.CC No.723/2023
(CCH-33) pending on the file of the learned XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS Act, Bangalore is hereby quashed.
Sd/-
JUDGE BKM