Karnataka High Court
Siddaraju vs The State Of Karnataka on 7 January, 2025
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2025:KHC:345
CRL.P No. 12079 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
CRIMINAL PETITION NO.12079 OF 2024 (482(Cr.PC) / 528(BNSS)
BETWEEN:
SIDDARAJU
S/O DORESWAMY,
NOW AGED ABOUT 39 YEARS,
R/A 'A' - VILLAGE, KURAHATTI HOSUR,
CHAMARAJANAGARA DISTRICT - 571 444.
...PETITIONER
(BY SRI. CHANDRASHEKARA K A., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY THE POLICE OF
RAJAJINAGARA POLICE STATION,
BENGALURU - 560 010.
REP. BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA
BENGALURU 560 001.
2. VIDHYADHAR D
Digitally MAJOR IN AGE,
signed by
LEELAVATHI POLICE INSPECTOR,
SR RAJAJINAGARA POLICE STATION,
Location: BENGALURU - 560 010.
High Court ...RESPONDENTS
of Karnataka
(BY SMT. RASHMI JADHAV, ADDL. SPP)
THIS CRL.P. IS FILED U/S 482 CR.PC (FILED U/S 528 BNNS) TO
QUASH THE ENTIRE PROCEEDINGS PENDING FOR THE OFFENCE P/U/S
20(b), (i) OF NDPS ACT 1985 IN SO FAR AS THE PETITIONER HEREIN IS
CONCERNED.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
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NC: 2025:KHC:345
CRL.P No. 12079 of 2024
ORAL ORDER
This petition by accused No.3 in CC No.17532/2018 seeks quashing of the said proceedings on the file of the 32nd Addl. CJM, Bengaluru, for the offences punishable under Section 20(b)(i) of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act') and for other reliefs.
2. Heard learned counsel for the petitioner and learned Addl. SPP for the respondents and perused the material on record.
3. A perusal of the material on record will indicate that on 20.01.2017, on the information furnished by respondent No.2, a case in Crime No.15/2017 was registered by respondent No.1 -
police authorities against one Nandish H.J. and Pramod R.S., (accused Nos.1 and 2, respectively) and during course of investigation, based on the alleged voluntary statement of the aforesaid accused Nos.1 and 2 i.e., Nandish H.J. and Pramod R.S., the petitioner was arrayed as accused No.3 to the charge sheet and the aforesaid proceedings in C.C.No.17532/2018, which is assailed in the present petition.
4. In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned -3- NC: 2025:KHC:345 CRL.P No. 12079 of 2024 counsel for the petitioner submits that it is an undisputed fact that the substance in question was not recovered from either the residence or custody or possession of the petitioner - accused No.3, who was not arrayed as accused in the FIR. It is submitted that it is subsequently based on the alleged voluntary statement of accused Nos.1 and 2 that the petitioner is sought to be arrayed as accused No.3, which is impermissible in law in the light of the judgments of the Co-ordinate Bench of this Court in Saikat Bhattacharyya Vs. Union of India - Crl.P.No.3/2024 dated 04.09.2024; Afroz @ Afroz Pasha Vs. The State of Karnataka and another - W.P.No.9966/2023 dated 09.08.2024 and Raghavendra and another Vs. The State of Karnataka and another - W.P.No.20666/2023 dated 05.03.2024 wherein this Court relied upon the judgment of the Apex Court in the case of Tofan Singh Vs. State of Tamil Nadu -
(2020) 12 SCR 583 in order to come to the conclusion that in the absence of any other corroborative material mere voluntary statement of the co-accused cannot be made the basis to implicate the petitioner as accused No.3 since the substance in question was neither recovered from the residence or custody nor possession of the petitioner. It is therefore submitted that the -4- NC: 2025:KHC:345 CRL.P No. 12079 of 2024 impugned proceedings qua the petitioner - accused No.3 are contrary to the principles laid down in the aforesaid judgments and the same deserves to be quashed.
5. Per contra, learned Addl. SPP for the respondents submits that there is no merit in the petition and that the same is liable to be dismissed.
6. In Saikat Bhattacharyya's case supra, the co-
ordinate Bench of this court under identical circumstances in relation to the proceedings under the NDPS held as follows:
" 8. The afore-narrated facts of the petitioner being drawn into the web of crime is not disputed. How he gets into the crime is what is required to be reiterated. The respondent is said to have received information of a parcel being sent from Shree Maruthi Courier Service. They were 4 in number. All the 4 parcels is said to have contained ganja. On ganja being found in those 4 parcels, the police registers a suo motu case against several accused, all the accused are before this Court. After registration of the crime, the accused were interrogated and their statements were recorded under Section 67 of the NDPS Act. Recording of the statement led to the filing of a complaint against the petitioner/accused No.3 before this Court in the subject petition.
9. The undisputed facts, in the case at hand, are that the name of the petitioner was not found on the envelope that -5- NC: 2025:KHC:345 CRL.P No. 12079 of 2024 allegedly contained ganja. What was found was the telephone number of the petitioner on the cover which led the police to interrogate and record statement of the petitioner, which forms part of the complaint so filed for the afore-quoted offences. Apart from the confession statement recorded by the respondent-police of the petitioner, there is no other material that can pin down the petitioner, as parcel though contained ganja, the address was not that of the petitioner nor it was in the name of the petitioner, except the mysterious printing of the telephone number on the cover. The petitioner is said to have confessed to the crime while recording the statement under Section 67 of the NDPS Act. The complaint so filed against the petitioner read as follows:
"on the basis of the voluntary statement of Mr. Saikat Bhattacharrya S/o Sukanti Bhattacharrya Dated 30.11.2022, 01.12.2022, 02.12.2022 and the material objects seized i.e. 109 Grams of Ganja on dated 30.11.2022 was arrested by Smt. Sheeja Sivaraman, Junior Intelligence Officer (CW-2) on dated 02.12.2022 at 12:10 Hrs. for committing offences u/s 8(c) read with 20(b)(ii)(A), 27, 28 and 29 of the NDPS Act (Ex...... Page Nos.44). Jamatalashi were done by CW-2 in respect of Mr.Saikat Bhattacharrya S/o Sukanti Bhattacharrya immediately after his arrest on dated 02.12.2022 (Ex...... Page Nos.45)."
A perusal at the complaint would indicate that no recovery of ganja was made from the hands of the petitioner.
10. It becomes apposite to refer to the judgment of the Apex Court in the case of TOFAN SINGH v. STATE OF TAMIL NADU1 wherein the Apex Court holds as follows:
1(2021) 4 SCC 1 -6- NC: 2025:KHC:345 CRL.P No. 12079 of 2024 ".... .... ....
158. We answer the reference by stating:
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.
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."
The Apex Court has held that a voluntary or a confession statement made under Section 67 of the NDPS Act cannot be used to pin the accused down for the offences under the NDPS Act.
11. The Apex Court in the case of STATE v. PALLULABID AHMAD ARIMUTTA2 has held as follows:
".... .... ....
11. Having gone through the records along with the tabulated statement of the respondents submitted on behalf of the petitioner NCB and on carefully perusing the impugned orders [Pallulabid Ahamad Arimutta v. State, 2019 SCC OnLine Kar 3516], [Mohd. Afzal v. Union of India, 2020 SCC OnLine Kar 3433], [Munees Kavil Paramabath v. State, 2020 SCC OnLine Kar 3431], [Abu Thahir v. State, 2019 SCC OnLine Kar 3517], [Mohd. Afzal v. Union of India, 2020 SCC OnLine Kar 1294], [Munees Kavil Parambath v. State of Karnataka, 2020 SCC OnLine Kar 3432] passed in each case, it emerges that except for the voluntary statements of A-1 and A-2 in the first case and that of the respondents themselves recorded under Section 67 of the NDPS Act, it appears, prima facie, that no 2 (2022) 12 SCC 633 -7- NC: 2025:KHC:345 CRL.P No. 12079 of 2024 substantial material was available with the prosecution at the time of arrest to connect the respondents with the allegations levelled against them of indulging in drug trafficking. It has not been denied by the prosecution that except for the respondent in SLP (Crl.) No. 1569 of 2021, none of the other respondents were found to be in possession of commercial quantities of psychotropic substances, as contemplated under the NDPS Act.
12. It has been held in clear terms in Tofan Singh v. State of T.N. [Tofan Singh v. State of T.N., (2021) 4 SCC 1: (2021) 2 SCC (Cri) 246] , that a confessional statement recorded under Section 67 of the NDPS Act will remain inadmissible in the trial of an offence under the NDPS Act. In the teeth of the aforesaid decision, the arrests made by the petitioner NCB, on the basis of the confession/voluntary statements of the respondents or the co-accused under Section 67 of the NDPS Act, cannot form the basis for overturning the impugned orders [Pallulabid Ahamad Arimutta v. State, 2019 SCC OnLine Kar 3516] , [Mohd. Afzal v. Union of India, 2020 SCC OnLine Kar 3433] , [Munees Kavil Paramabath v. State, 2020 SCC OnLine Kar 3431] , [Abu Thahir v. State, 2019 SCC OnLine Kar 3517] , [Mohd. Afzal v. Union of India, 2020 SCC OnLine Kar 1294] , [Munees Kavil Parambath v. State of Karnataka, 2020 SCC OnLine Kar 3432] releasing them on bail. The CDR details of some of the accused or the allegations of tampering of evidence on the part of one of the respondents is an aspect that will be examined at the stage of trial. For the aforesaid reason, this Court is not inclined to interfere in the orders dated 16-9-2019 [Pallulabid Ahamad Arimutta v. State, 2019 SCC OnLine Kar 3516] , 14-1- 2020 [Mohd. Afzal v. Union of India, 2020 SCC OnLine Kar 3433] , 16-1-2020 [Munees Kavil Paramabath v. State, 2020 SCC OnLine Kar 3431] , 19-12-2019 [Abu Thahir v. State, 2019 SCC OnLine Kar 3517] and 20-1-2020 [Munees Kavil Parambath v. State of Karnataka, 2020 SCC OnLine Kar 3432] passed in SLP (Crl.) No. arising out of Diary No. 22702 of 2020, SLP (Crl.) No. 1454 of 2021, SLP (Crl.) No. 1465 of 2021, SLPs (Crl.) Nos. 1773-74 of -8- NC: 2025:KHC:345 CRL.P No. 12079 of 2024 2021 and SLP (Crl.) No. 2080 of 2021 respectively.
The impugned orders [Pallulabid Ahamad
Arimutta v. State, 2019 SCC OnLine Kar
3516] , [Mohd. Afzal v. Union of India, 2020 SCC OnLine Kar 3433] , [Munees Kavil Paramabath v. State, 2020 SCC OnLine Kar 3431] , [Abu Thahir v. State, 2019 SCC OnLine Kar 3517] , [Mohd. Afzal v. Union of India, 2020 SCC OnLine Kar 1294] , [Munees Kavil Parambath v. State of Karnataka, 2020 SCC OnLine Kar 3432] are, accordingly, upheld and the special leave petitions filed by the petitioner NCB seeking cancellation of bail granted to the respective respondents, are dismissed as meritless."
12. The Judgment in the case of TOFAN SINGH is reiterated in BALWINDER SINGH v. NARCOTICS 3 CONTROL BUREAU where the Apex Court holds as follows:
".... .... ....
26. Now that it has been declared in Tofan Singh's case (supra) that the judgments in the case of Kanhaiyalal (supra) and Raj Kumar Karwal (supra) did not state the correct legal position and they stand overruled, the entire case set up by the prosecution against Balwinder Singh, collapses like a House of cards. It is not in dispute that Balwinder Singh was not apprehended by the NCB officials from the spot where the naka was laid and that Satnam Singh alone was apprehended in the Indica car. The version of the prosecution is that after Satnam Singh was arrested, his statement was recorded under Section 67 of the NDPS Act wherein he ascribed a specific role to the co-accused - Balwinder Singh and the Sarpanch. The NCB officers claimed that they were on the lookout for both of them since they had managed to run away from the spot. While Sarpanch could not be apprehended, the NCB officers learnt from reports in the newspaper that Balwinder had been arrested by the Amritsar Police in an NDPS case 3 2023 SCC OnLine SC 1213 -9- NC: 2025:KHC:345 CRL.P No. 12079 of 2024 and was lodged in the Central Jail, Amritsar. Permission was taken from the concerned Court to take Balwinder Singh into custody in the instant case and he was arrested. A notice was served on him under Section 67 of the NDPS Act and his statement was recorded. Treating his statement as a confessional statement, Balwinder Singh was arrested.
27. Once the confessional statement of the co- accused, Satnam Singh recorded by the NCB officers under Section 67 of the NDPS Act, who had attributed a role to Balwinder Singh and the subsequently recorded statement of Balwinder Singh himself under Section 67 of the NDPS Act are rejected in the light of the law laid down in Tofan Singh (supra), there is no other independent incriminating evidence that has been brought to the fore by the prosecution for convicting Balwinder Singh under the NDPS Act. On ignoring the said confessional statements & recorded before the officers of the NCB in the course of the investigation, the vital link between Balwinder Singh3 and the offence for which he has been charged snaps conclusively and his conviction order cannot be sustained.
28. As a result of the above discussion, we are of the opinion that Balwinder Singh deserves to be acquitted of the charge of being in conscious possession of commercial quantity of heroin under the NDPS Act. Ordered accordingly.
... ... ...
31. Thus, it can be seen that the initial burden is cast on the prosecution to establish the essential factors on which its case is premised. After the prosecution discharges the said burden, the onus shifts to the accused to prove his innocence. However, the standard of proof required for the accused to prove his innocence, is not pegged as high as expected of the prosecution. In the words of Justice Sinha, who speaking for the Bench in Noor Aga (supra), had observed that:
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NC: 2025:KHC:345 CRL.P No. 12079 of 2024 "58. ....... Whereas the standard of proof required to prove the guilt of the accused on the prosecution is "beyond all reasonable doubt" but it is "preponderance of probability" on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established."
32. The essence of the discussion in the captioned case was that for attracting the provisions of Section 54 of the NDPS Act, it is essential for the prosecution to establish the element of possession of contraband by the accused for the burden to shift to the accused to prove his innocence. This aspect of possession of the contraband has to be proved by the prosecution beyond reasonable doubt."
13. These judgments are again reiterated by the Apex Court in FIRDOSKHAN KHURSHIDKHAN v. STATE OF GUJARAT4 holding as follows:
".... .... ....
"23. Now, coming to the case of appellant Firdoskhan(A-2) in Criminal Appeal No. 2044 of 2010.
24. It is not in dispute that the appellant Firdoskhan(A-2) was not apprehended on the spot or at the time of seizure. On a perusal of the panchnama(Exhibit-30), it is evident that Firdoskhan is not named therein. We find that even though Anwarkhan(A-1) was present with the raiding team from 4.30 p.m onwards, no effort was made by any of the NCB officials to make an inquiry from him regarding the identity of his companion who allegedly fled away from the spot.
25. The name of Firdoskhan(A-2) cropped up for the first time in the statement of Anwarkhan(A-1) recorded under Section 67 of the NDPS Act. However, we are duly satisfied that 4 2024 SCC OnLine SC 680
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NC: 2025:KHC:345 CRL.P No. 12079 of 2024 the sequence in which the said statement came to be recorded completely discredits the reliability thereof. Anwarkhan(A-1) was apprehended at the bus stand with the packet of narcotic drug at around 4 : 30 p.m. His signatures had been taken on the panchnama(Exhibit-30) prepared at 9 : 00 p.m. and thus, it does not stand to reason that the Intelligence Officer would defer arresting Anwarkhan(A-1) to a later point of time because, as per the arrest memo(Exhibit-43) his arrest is shown at 11 : 45 p.m. It seems that this deferment in formal arrest of Anwarkhan(A-1) was only shown in papers so that the Intelligence Officer could record the statement of Anwarkhan(A-1) under Section 67 of the NDPS Act and avoid the same being hit by the rigours of Article 20(3) of the Constitution of India.
26. The admissibility of a confessional statement of the accused recorded under Section 67 of the NDPS Act was examined by this Court in the case of Tofan Singh (supra) and it was laid down that such confessional statements are not admissible in evidence.
27. Hence, the statement(Exhibit-42) of Anwarkhan(A-1) wherein he allegedly identified the appellant Firdoskhan(A-2) as the person who had escaped from the spot cannot be read in evidence against the appellant Firdoskhan(A-2) because the manner in which the said statement was recorded leaves much to be desired and creates a grave doubt on the sanctity thereof, in addition to the same having rendered inadmissible by virtue of Tofan Singh (supra).
28. The prosecution witness Deepak Pareek(PW-2) claimed that Firdoskhan(A-2) was apprehended from Shah Jahan Pur Police Station, Madhya Pradesh. However, no document pertaining to the apprehension/detention of appellant Firdoskhan(A-2) at the Shah Jahan Pur Police Station was placed on record by the prosecution. Thus, the very manner in which the said accused
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NC: 2025:KHC:345 CRL.P No. 12079 of 2024 was apprehended and brought to the NCB Office at Ahmedabad in the purported exercise of recording his statement under Section 67 of the NDPS Act is full of doubt and creates grave suspicion. Even otherwise, the confession of the accused recorded under Section 67 of the NDPS Act cannot be admitted in evidence as a confession as had been held in the case of Tofan Singh (supra). Hence the confessional statement(Exhibit-42) does not lend any succour to the prosecution in its quest to prove the charges against the accused Firdoskhan(A-2)."
14. Further, the Apex Court in its latest judgment in the case of NAJMUNISHA V. STATE OF GUJARAT5, has held as follows:
"49. Thereinafter, a significant reliance was placed by the High Court on the statements of the accused wherein a categorical admission was substantiated by them, especially Accused No. 01 and Accused No. 04. To begin with, Section 67 of the NDPS Act 1985 reads:
"67. 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 provision 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;5
2024 SCC OnLine SC 520
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NC: 2025:KHC:345 CRL.P No. 12079 of 2024
(c) examine any person acquainted with the facts and circumstances of the case."
50. The evidentiary value of confessional statements recorded under Section 67 of the NDPS Act 1985 was dealt with by this Court in the case of Tofan Singh (supra). As per the majority verdict delivered by 3-Judges' Bench in this case has held that the powers conferred on the empowered officers under Section 41 and 42 of the NDPS Act 1985 read with Section 67 of the NDPS Act 1985 are limited in nature conferred for the purpose of entry, search, seizure and arrest without warrant along with safeguards enlisted thereof. The "enquiry" undertaken under the aforesaid provisions may lead to initiation of an investigation or enquiry by the officers empowered to do so either under Section 53 of the NDPS Act 1985 or otherwise. Thus, the officers empowered only under the aforesaid provisions neither having power to investigate nor to file a police report meet the test of police officer for the purpose of Section 25 of the IEA 1872. Consequently, the bar under Section 25 of the IEA 1872 is not applicable against the admissibility of confessional statement made to the officers empowered under Section 41 and 42 of the NDPS Act 1985.
51. Furthermore, it was also held by this Court that Section 67 is at an antecedent stage to the investigation, which occurs after the empowered officer under Section 42 of the NDPS Act 1985 has the reason to believe upon information gathered in an enquiry made in that behalf that an offence under NDPS Act 1985 has been committed and is thus not even in the nature of a confessional statement. Hence, question of its being admissible in trial as a confessional statement against the accused does not arise.
52. The same, therefore, cannot be considered to convict an accused person under the NDPS Act 1985. A reference at this stage may be made to the majority view in the 3-Judges' Bench decision wherein it was held as follows in paragraph number 158:
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NC: 2025:KHC:345 CRL.P No. 12079 of 2024 "158. We answer the reference by stating:
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. 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.
53. By virtue of the decision in Tofan Singh (supra), the benefit is to be granted to the appellants herein in regard to the inadmissibility of their statements under Section 67 of the NDPS Act 1985."
15. On a coalesce of the judgments rendered by the Apex Court as quoted hereinabove, what would unmistakably emerge is, the proceedings against the petitioner cannot be permitted to be continued, as there is not an iota of corroboration that would pin down the petitioner to the offences, except the voluntary/confessional statement of the petitioner recorded under Section 67 of the Act, which is clearly hit by Section 25 of the Evidence Act, as is considered by the Apex Court on an interplay between Section 25 of the Evidence Act and Section 67 of the Act. Permitting further proceedings against the petitioner who at any point in time was not alleged to be involved in any crime except in the aforesaid statement, would become an abuse of the process of law and result in patent injustice.
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NC: 2025:KHC:345 CRL.P No. 12079 of 2024
16. For the aforesaid reasons, the following:
ORDER
(i) Criminal Petition is allowed.
(ii) Impugned proceedings in Spl.C.C.No.2076 of 2023 pending on the file of XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS Cases, Bengaluru stands quashed."
7. In Afroz @ Afroz Pasha's case supra, the co-ordinate Bench of this court under identical circumstances in relation to the proceedings under the NDPS held as follows:
"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 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.
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NC: 2025:KHC:345 CRL.P No. 12079 of 2024 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 ¸ÀܼÀPÉÌ ºÉÆÃUÀÄwÛzÀÝAvÉ DgÉÆæ-1 Nr ºÉÆÃUÀ®Ä ¥ÀæAiÀÄwß¹zÀÄÝ, ¸ÁQë-7 ªÀÄvÀÄÛ ¸ÁQë-8 gÀªÀgÀÄ »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 £ÀqɸÀRÁV ¥ÁåAn£À §® eÉé£À°è UÁAeÁ ªÀiÁgÁl ªÀiÁrzÀ ºÀt gÀÆ.410/- ªÀÄvÀÄÛ PÁåj¨ÁåUÀß°èzÀÝ 640 UÁæA vÀÆPÀzÀ JRÉ, MtVzÀ ©Ãd ªÀÄvÀÄÛ ¸ÀtÚ¸ÀtÚ gÉA¨ÉUÀ¼ÀÄ, ºÀÆ«¤AzÀ PÀÆrzÀ ©r UÁAeÁªÀ£ÀÄß ªÀ±À¥Àr¹PÉÆArzÀÄÝ, UÁAeÁ §UÉÎ «ZÁgÀ ªÀiÁqÀRÁV 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,
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NC: 2025:KHC:345 CRL.P No. 12079 of 2024 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 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
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NC: 2025:KHC:345 CRL.P No. 12079 of 2024 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 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 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 INDIA6 wherein the Apex court has held as follows:
6(2020) 20 SCC 272
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NC: 2025:KHC:345 CRL.P No. 12079 of 2024 "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 Court in the case of HIRA SINGH (supra) is followed by a coordinate Bench of this Court in RANGAPPA v. STATE7 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), 7 Criminal Petition No.11678 of 2022 decided on 7-12-2022
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NC: 2025:KHC:345 CRL.P No. 12079 of 2024 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 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
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NC: 2025:KHC:345 CRL.P No. 12079 of 2024 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. INTELLIGENCE OFFICER, DIRECTORATE OF REVENUE INTELLIGENCE8 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. Barring this, there is no recovery from the petitioner nor any incriminating material found 8 (2018) 8 SCC 271
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NC: 2025:KHC:345 CRL.P No. 12079 of 2024 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.
(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."
8. In Raghavendra's case supra, the co-ordinate Bench of this court under identical circumstances in relation to the proceedings under the NDPS held as follows:
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NC: 2025:KHC:345 CRL.P No. 12079 of 2024 " 2. Case of the prosecution is that on 28.06.2019, on receiving a credible information, a raid was conducted and it was uncovered that four persons were selling ganja and on seeing the police, two accused fled from the spot and accused Nos.1 and 2 were apprehended and on apprehending, ganja weighing 1 Kg each was recovered from accused Nos.1 and 2 and in the confession statement, they have allegedly stated that the other two accused who fled from the spot were the petitioners herein. Thereafter, the police conducted a search of the rented house in which the accused No.4 was residing and ganja weighing 218 grams was seized in the presence of the Panchas.
3. Learned counsel for the petitioners submits that the petitioners have been implicated solely on the basis of the confession statement of accused Nos.1 and 2 and they cannot be prosecuted solely on the basis of the confession statement of the co-accused. In support of his submissions, he relied upon the decision of the Hon'ble Apex Court in the case of Toofan Singh Vs. The State of Tamil Nadu reported in (2021) 4 SCC 1.
4. He further submits that the search conducted by the Police on the premises of the alleged rented house of accused No.4 stands vitiated for non compliance of Sections 43 and 50 of the NDPS Act. He further submits that the samples of ganja collected from the rented house of accused No.4 was taken on the spot and not in the presence of the learned Magistrate as stated under Section 53A of the Act.
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NC: 2025:KHC:345 CRL.P No. 12079 of 2024
5. Learned counsel for the respondent No.1-State submits that the charge-sheet material discloses that the petitioners were found in possession of ganja which was seized from the house and the charge-sheet material discloses the commission of the offence alleged against the petitioners and the veracity of the allegation can be considered only at the time of trial and the same cannot be gone into in this petition.
6. Considered the submission made by the learned counsel for the parties.
7. The petitioners were implicated based on the confession statement of accused Nos.1 and 2, who were found in possession of ganja, and who have allegedly stated that other two accused, who fled away from the spot were the petitioners herein. Therefore, the respondent-Police conducted search of house of accused No.4 and upon search, it was uncovered that 218 grams of ganja was seized in the presence of panchas. However, the respondent-Police, before conducting search were obligated to obtain a warrant from the Magistrate as stated under Section 51 of NDPS Act, which contemplates that the provisions of the Code of Criminal Procedure, 1973 shall apply, insofar as they are not inconsistent with the provisions of the NDPS Act, to all warrants issued and arrests, searches and seizures. Therefore, it is implied that before conducting a search of the premises, the police were required to obtain a warrant as contemplated under Section 100 of Cr.P.C.
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NC: 2025:KHC:345 CRL.P No. 12079 of 2024
8. In the instant case, the police, without obtaining a warrant as contemplated under Section 100 of Cr.P.C., have broke open the lock of house of accused No.1 and upon search, it is alleged that 218 grams of ganja was recovered in the presence of panchas and seizure and recovery of ganja stands vitiated for non-compliance of mandatory provision contained under Section 100 of Cr.P.C.
9. Furthermore, the respondent - police herein have not adduced any evidence to indicate compliance of provisions of Section 165 of the Cr.P.C. to the effect of presence of compelling factors to conduct a search without undue delay, and the additional safeguard of having recorded in writing the grounds of belief and specifying the thing for which the search is to be made.
10. The Hon'ble Supreme Court in the case of Tofan Singh (supra) while dealing with Section 67 of the Act at paras-66 and 68 has held as follows:
"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 information gathered in an enquiry made in that behalf, that an offence has been committed.
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NC: 2025:KHC:345 CRL.P No. 12079 of 2024
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."
11. The Hon'ble Supreme Court in the case of Tofan Singh (supra) at para-158.1 has held as follows:
"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."
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NC: 2025:KHC:345 CRL.P No. 12079 of 2024
12. Thus, any confessional statement made to the officers empowered under Section 53 cannot be taken into account in order to convict an accused, except to the extent found relevant under section 53 A and when corroborated in accordance with law.
13. In view of the preceding analysis, I pass the following:
ORDER
i) The petition is allowed.
ii) The impugned proceedings in Spl.Case No.470/2020 (arising out of Crime No.194/2019) of Koramangala Police Station, Madiwala Sub-Division, Bengaluru, pending on the file of the learned XXXIII Additional City Civil and Sessions Judge and Special Judge (NDPS), Bengaluru (CCH-33) is hereby quashed."
9. In the instant case, as stated supra, it is an undisputed fact and matter of record that substance in question were not recovered from the custody or possession or residence of the petitioner and the same is recovered only from accused Nos.1 and
2. As held by the Apex Court and this Court in the aforementioned judgments merely because co-accused viz., accused Nos.1 and 2 have stated in their voluntary statement that petitioner had sold the substance in question to accused Nos.1 and 2, the said circumstance cannot be made the basis to come to the conclusion
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NC: 2025:KHC:345 CRL.P No. 12079 of 2024 that the petitioner is guilty of the offence alleged against him and consequently, the impugned proceedings qua the petitioner -
accused No.3 deserves to be quashed.
10. Accordingly, I pass the following:
ORDER
(i) The Criminal Petition is allowed.
(ii) The impugned criminal proceedings in so far as the petitioner is concerned, in C.C.No.17532/2018 on the file of the XXXII Addl. C.J.M., Bengaluru, qua the petitioner are hereby quashed.
Sd/-
(S.R.KRISHNA KUMAR) JUDGE SV List No.: 1 Sl No.: 43