Karnataka High Court

Adam Pasha vs Union Of India on 7 January, 2021

Author: Mohammad Nawaz

                           1




 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 7TH DAY OF JANUARY, 2021

                       BEFORE:

       THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ


        CRIMINAL PETITION NO.7658 OF 2020


BETWEEN:

ADAM PASHA,
S/O. MAZHAR SAHAB PASHA,
AGED 37 YEARS,
RESIDENT OF NO.309, FIELDS FARM,
BETTADASANAPURA, BOMMANAHALLI,
BANGALORE-560 068,
PRESENTLY LODGED AT CENTRAL PRISON,
PARAPPANNA AGRAHARA,
BANGALORE.                                 ...    PETITIONER

[BY SMT. JAYNA KOTHARI, SENIOR COUNSEL FOR
    SRI. ROHAN KOTHARI, ADVOCATE OF ASHIRA LAW]


AND:

UNION OF INDIA,
THROUGH THE NARCOTICS CONTROL BUREAU,
BANGALORE ZONAL UNIT,
7/1 & 2 PRIYANK VILLAS,
KATTIGENEHALLI,
BAGLUR MAIN ROAD,
YELAHANKA,
BANGALORE-560 063,
REPRESENTED BY
THE LD. SPL. PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE-560 001.                       ...     RESPONDENT

[BY SRI. MADHUKAR DESHPANDE, ADVOCATE]
                                  2




      THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF
CR.P.C., PRAYING TO ENLARGE THE PETITIONER ON BAIL IN NCB
F.NO.48/1/14/2020/BZU REGISTERED BY NCB, BENGALURU ZONAL
UNIT, FOR THE OFFENCE P/U/S 8(C) R/W 22, 27A, 28 AND 29 OF
NDPS ACT.

     THIS CRIMINAL PETITION COMING ON FOR ORDERS, THIS
DAY THE COURT MADE THE FOLLOWING:


                              ORDER

This petition is filed by accused No.4 under Section 439

of Cr.P.C. praying to release him on bail in a case bearing

reference NCB.F.NO.48/1/14/2020/BZU, registered by the

Narcotics Control Bureau, Bengaluru Zonal Unit, for offences

punishable under Sections 8 r/w 22, 27-A, 28 and 29 of the

Narcotic Drugs and Psychotropic Substances Act, 1985

[hereinafter referred to as 'NDPS Act' for short].

2. I have heard the learned senior counsel for

petitioner and the learned standing counsel for the

respondent.

3. The sum and substance of the prosecution case is

that, on receiving a credible information, the officials of the

Narcotics Control Bureau, between 21st and 23rd August,

2020, recovered a total quantity of 211.06 gms. of MDMA pills

from accused Nos.1 to 3 and recorded their voluntary

statements. The Intelligence Officer issued summons to the

petitioner herein under Section 67 of the NDPS Act to appear

before him on 20.10.2020, for an enquiry in connection with

the alleged drug trafficking and seizure of contraband articles

from the possession of accused Nos.1 to 3. The same day on

his appearance, his statement was recorded, wherein it is

alleged that he confessed to have procured the contraband

drug from accused No.1 for the purpose of consumption and

accordingly, he was arrested and remanded to judicial

custody.

4. The accused/petitioner approached the Sessions

Court to enlarge him on bail in Crl. Misc. No.6660/2020,

which came to be rejected vide Order dated 18.11.2020.

5. The learned senior counsel appearing for

petitioner would vehemently contend that on receiving the

summons issued to him by the Intelligence Officer, the

petitioner has appeared before him for the purpose of an

enquiry and on the very same day he was arrested on the

ground that he has committed an offence punishable under

Sections 8(c) r/w 27 of the NDPS Act. The maximum

punishment prescribed for an offence under Section 27 of the

NDPS Act is not more than one year. It is contended that the

alleged statement said to have been recorded cannot be

considered as a confessional statement as it was recorded for

the purpose of an enquiry. Even otherwise, the said

statement cannot be used as a basis to deny bail to the

petitioner. It is further contended that from the possession of

the petitioner herein there is no contraband article seized and

the petitioner has been implicated on the basis of the

statements of co-accused viz., accused Nos.1 to 3 and

therefore, she has contended that there is nothing on record

to substantiate the role of the petitioner in any of the alleged

offences and the bar created under Section 37 of the NDPS

Act do not apply in so far as the petitioner herein is

concerned. The learned senior counsel submits that the

petitioner is ready and willing to furnish sufficient surety to

the satisfaction of the Hon'ble Court and he will abide by any

reasonable conditions that may be imposed by this Court.

Accordingly, seeks to allow the petition.

6. The learned standing counsel appearing for the

respondent having filed statement of objections has

vehemently contended that initially accused No.2 by name

Mohd. Anoop was arrested and from his possession 60 gms.

of MDMA pills, cash and several other documents have been

seized. Thereafter other accused are arrested and a total

quantity of 211.06 gms. of MMDA pills are seized from

accused Nos.1 to 3 which is a commercial quantity. He

contends that as per the disclosure made by the accused

recorded under Section 67 of the NDPS Act, they have

admitted their respective role in the drug trafficking and on

further investigation it has come to light that the petitioner

herein was in constant touch with accused No.1 in relation to

drug trafficking. Hence, he was summoned under Section 67

of the NDPS Act and he has confessed that he was a regular

buyer of MDMA crystals from accused No.1-Anikha D. He

contends that the petitioner has been purchasing the drugs

from accused No.1 and used to pay through UPI payment. He

had the knowledge about accused No.1 supplying drugs.

Accused No.1 used to send drugs by sealing it in parcels

through on-line delivery service like Dunzo and Swiggy to

avoid interception by the Law Enforcement Agency. The

investigation has revealed that there was UPI transaction of

more than Rs.2 lakhs of INR paid by the petitioner to accused

No.1 in just a span of 10 months and the petitioner has

confessed in his voluntary statement that these payments

were made for purchasing MDMA crystals from accused No.1.

He has contended that in view of Section 37 of the NDPS Act,

since there is a prima facie case made out against the

petitioner, he is not entitled for bail.

7. The learned standing counsel for respondent

would also contend that in the event of release of the

petitioner on bail, the petitioner may flee from justice and

tamper with the evidence and thereby hinder the progress of

the investigation. Further, he may again commit the same

illegal drug business which is disastrous to the society.

Accordingly, seeks to reject the petition.

8. I have carefully perused the entire materials

placed on record.

9. As per the prosecution, a total quantity of 211.06

gms. of MDMA pills were seized from the possession of

accused Nos.1 to 3 between 21st to 23rd August, 2020. In the

course of investigation the petitioner was summoned by the

Intelligence Officer under Section 67 of the NDPS Act for the

purpose of an enquiry in respect of the alleged trafficking

and seizure of MDMA pills from the possession of accused

Nos.1 to 3. In view of the summons issued by the

Intelligence Officer, the petitioner appeared before him on

20.10.2020 and it is not in dispute that on the very same day

after recording his voluntary statement, he was arrested and

remanded to judicial custody.

10. The offence alleged to have committed by the

present petitioner is one under Section 27 of the NDPS Act,

which reads as under:

"27. Punishment for consumption of any narcotic drug or psychotropic substance-Whoever, consumes any narcotic drug or psychotropic substance shall be punishable:-


           (a)    where the narcotic drug or psychotropic
                  substance    consumed     is    cocaine,

morphine, diacetyl-morphine or any other

narcotic drug or any psychotropic substance as may be specified in this behalf by the Central Government by notification in the Official Gazette, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to twenty thousand rupees; or with both; and

(b) where the narcotic drug or psychotropic substance consumed is other than those specified in or under clause (a), with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both."

11. Even though the petitioner was arrested on

20.10.2020, it is not the case of prosecution that any

contraband article was recovered from his possession. The

prosecution relies on the voluntary statement of the

petitioner, wherein he is alleged to have made a statement

that he used to purchase the contraband article from accused

No.1, for the purpose of consumption. At this stage, even if

the offence alleged to have been committed by the petitioner

is accepted as true, the maximum sentence which may be

imposed for the said offence is for a term which may extend

to one year or with fine which may extend to Rs.20,000/- or

with both.

12. The learned standing counsel for respondent has

contended that Section 8(c) of the NDPS Act has been

invoked in this case and since the petitioner has knowingly

acquired the products from other accused, whatever has been

seized from the possession of accused Nos.1 to 3 has to be

considered to be in possession of the petitioner as well. He

has relied on the decision of the Hon'ble Apex Court in the

case of Mohan Lal Vs. State of Rajasthan reported in

2015(6) SCC 222. Relevant para Nos.11 and 12 are

extracted hereunder:

"11. When one conceives of possession, it appears in the strict sense that the concept of possession is basically connected to "actus of physical control and custody". Attributing this meaning in the strict sense would be understanding the factum of possession in a narrow sense. With the passage of time there has been a gradual widening of the concept and the quintessential meaning of the word possession. The classical theory of English law on the term "possession" is fundamentally dominated by Savigny- ian "corpus" and

"animus" doctrine. Distinction has also been made in "possession in fact" and "possession in law" and sometimes between "corporeal possession" and "possession of right" which is called "incorporeal possession". Thus, there is a degree of flexibility in the use of the said term and that is why the word possession can be usefully defined and understood with reference to the contextual purpose for the said expression. The word possession may have one meaning in one connection and another meaning in another.

12. The term "possession" consists of two elements.

First, it refers to the corpus or the physical control and the second, it refers to the animus or intent which has reference to exercise of the said control. One of the definitions of possession given in Black's Law dictionary is as follows:

"Possession-Having control over a thing with the intent to have and to exercise such control. Oswald v. Weigel. The detention and control or the manual or ideal custody, of anything which may be the subject of property, for one's use and enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one's place and name. Act or state of possessing. That condition of facts under which one can exercise his

power over a corporeal thing at his pleasure to the exclusion of all other persons.

The law, in general, recognizes two kinds of possession: actual possession and constructive possession. A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it. A person who, although not in actual possession, knowingly has both the power and the intention at given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it. The law recognizes also that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint."

In the said dictionary, the term "possess" in the context of narcotic drug law means:-

"Term 'possess', under narcotic drug laws, means actual control, care and management of the drug. Collini v. State. Defendant 'possesses' controlled substance when defendant knows of substance's

presence, substance is immediately accessible, and defendant exercises "dominion or control" over substance. State v. Hornaday."

And again:

"Criminal law-Possession as necessary for conviction of offense of possession of controlled substances with intent to distribute may be constructive as well as actual, U.S. v. Craig; as well as joint or exclusive, Garvey v. State. The defendants must have had dominion and control over the contraband with knowledge of its presence and character. U.S, v. Morando- Alvarez.

Possession, as an element of offense of stolen goods, is not limited to actual manual control upon or about the person, but extends to things under one's power and dominion. McConnell v. State.

Possession as used in indictment charging possession of stolen mail may mean actual possession or constructive possession. United States v. Ellison.

        To   constitute       'Possession',        of    a
  concealable         weapon         under         statue

proscribing possession of a concealable weapon by a felon, it is sufficient that

defendant have constructive possession and immediate access to the weapon. State v. Kelley."

13. The facts of the said case are entirely different

from the facts of the present case. In the said case, there

was seizure of drugs made on the voluntary statement of the

accused therein. However, it is not the case of the

prosecution that in the present case after the arrest of the

petitioner there was any seizure of drugs at his instance.

Further, at this stage it can not be said that the petitioner had

the dominion or control over the contraband which was seized

from the possession of accused Nos.1 to 3.

14. The learned standing counsel for the respondent

would also place reliance on the decision of this Court

reported in Crl.P. No.5159/2020, disposed of on 17.11.2020

and Crl.P. No.3571/2020 disposed of on 08.09.2020. I have

gone through both the said orders passed by this Court. In

the above referred cases, the accused therein are alleged to

have placed orders to procure drugs and on credible

information the Police seized the postal parcel which

contained MDMA pills. This Court after considering the facts

of those cases denied to enlarge the accused on bail. In both

the cases, there was seizure of MDMA pills and the

investigation revealed that it was the accused therein, who

had placed orders to procure the said drugs. However, in the

present case, MDMA pills were seized from the possession of

accused Nos.1 to 3. As already noted supra, nothing has

been recovered at the instance of the present petitioner and

after his voluntary statement was recorded, there was no

recovery of any drugs at his instance. The only allegation at

this stage is that he had procured the drugs from accused

No.1 for the purpose of consumption. However, the same is

based on the voluntary statement of the accused.

15. The learned senior counsel appearing for

petitioner has placed reliance on the decision of the Hon'ble

Apex Court in Tofan Singh Vs. State of Tamil Nadu

reported in 2020 SCC OnLine 882 and drawn the attention

of this Court to paragraph 158 of the said judgment which is

extracted hereunder:

"158. We answer the reference by stating:

(i) 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 provision of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.

(ii) That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trail of an offence under the NDPS Act."

The learned senior counsel has also relied on several other

decisions. For the purpose of disposal of this petition, it may

not be necessary to refer to those Judgments.

16. It is not in dispute that in the present case, the

total quantity of drugs seized from the possession of accused

Nos.1 to 3 is of commercial quantity. However, it is not the

case of the prosecution that any contraband has been seized

from the possession of the present petitioner. Hence, there

are reasonable grounds for believing that the petitioner is not

guilty of the offence which is now alleged against him by the

prosecution. For the aforesaid discussion and in the facts and

circumstances of the case, petitioner has made out a case to

enlarge him on bail.

17. The learned counsel for respondent would contend

that the petition in respect of accused No.3 has been

rejected by this Court and therefore the present petition filed

by accused No.4 also deserves to be rejected. As already

observed, the case of accused Nos.1 to 3 are entirely different

from that of the present petitioner and therefore, rejection of

the bail petition in respect of accused No.3 will not come in

the way of considering the bail petition of the present

petitioner.

18. Considering the above facts and circumstances of

the case, I am of the view that the petitioner is entitled to be

released on bail, however, by imposing stringent conditions.

Accordingly, the following:

ORDER

Petition is allowed.

The petitioner/accused No.4 shall be released on bail in

reference NCB.F.NO.48/1/14/2020/BZU, registered by the

Narcotics Control Bureau, Bengaluru Zonal Unit, subject to

the following conditions:

1) The petitioner/accused No.4 shall execute a personal bond in a sum of Rs.2,00,000/- [Rupees Two Lakhs only] with two solvent sureties for the likesum to the satisfaction of the learned Sessions Judge/ Special Judge.