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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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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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
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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
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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
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CRL.P No. 12079 of 2024allegedly 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
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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
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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
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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
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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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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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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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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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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:
– 14 –
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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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.
– 16 –
NC: 2025:KHC:345
CRL.P No. 12079 of 2024The summary of the charge sheet as obtaining in Column
No.17 reads as follows:
“17. Brief facts of the case
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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,
– 17 –
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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
– 18 –
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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
– 19 –
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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
– 20 –
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CRL.P No. 12079 of 2024the 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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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
– 22 –
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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:
– 23 –
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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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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.
– 25 –
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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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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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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
– 28 –
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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