Mr Aditya Agarwal vs State Of Karnataka
2021 Latest Caselaw 869 Kant

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                                                              R
 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 15TH DAY OF JANUARY, 2021

                          BEFORE:

       THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ


         CRIMINAL PETITION NO.7270 OF 2020

BETWEEN:

MR. ADITYA AGARWAL
SON OF BRIGADIER MOHAN KUMAR AGARWAL
AGED ABOUT 40 YEARS,
RESIDING AT:
NO.55, SHALIMAR APARTMENTS
DSOUZA ROAD, SHANTALANAGAR
ASHOK NAGAR,
BENGALURU-560025.                         ...    PETITIONER

[BY SRI. C.V.NAGESH, SR. ADVOCATE FOR
 SRI. SANJANTHI SAJAN POOVAYYA,
 SRI. MRINALSHANKAR, SRI. ABHILASH V., ADVOCATES]

AND:

STATE OF KARNATAKA
BY BANASWADI POLICE STATION
5TH MAIN, 3RD CROSS ROAD
NEAR ELECTRICITY COMPLAINT
OFFICE KALYAN NAGAR
BENGALURU-560043
KARNATAKA
REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA.                 ...    RESPONDENT

[BY SRI. VEERANNA G. TIGADI, SPL.PP]


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      THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF
CR.P.C., PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
CR.NO.588/2018 OF BANASWADI POLICE STATION, BENGALURU
CITY FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 21(b),
21(c), 22(c) OF THE NARCOTIC DRUGS AND PSYCHOTROPIC
SUBSTANCES ACT, 1985 AND SECTION 14 OF THE FOREIGNERS
ACT, 1946.

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


                            ORDER

This petition is filed under Section 439 of Cr.P.C., praying

to enlarge the petitioner on bail in connection with a case

registered in Crime No.588/2018 of Banaswadi Police Station,

Bengaluru City, for offences under Sections 21(b), 21(c),

22(c) of the Narcotic Drugs and Psychotropic Substances Act,

1985 [hereinafter referred to as 'NDPS Act' for short] and

Section 14 of the Foreigners Act, 1946.

2. Brief facts;

On 02.11.2018, at about 9.00 a.m., on a credible

information that 2 African nationals and one Indian national

are indulged in drug trafficking, the premises bearing No.25, I

Floor, 3rd Cross, Kacharakanahalli, Thomas Town, Bengaluru,

was raided by the CCB Police and from the possession of

accused Nos.1 to 3, they seized 1.5 kgs. of cocaine, 914 gms.

of ecstasy drug in the form of 1930 pills as well as Toyota car,

Honda Active bike and other articles and on the basis of the

report submitted by the Police Inspector, CCB., Women and

Narcotic Drugs Squad, the aforesaid case was registered. On

completion of investigation, charge-sheet was filed against

accused Nos.1 to 3 for offences punishable under Sections

468, 471, 420, 120-B of IPC and Sections 21(b), 21(c), 22(c)

of the NDPS Act and under Section 14 of the Foreigners Act,

1946. On 03.09.2020, the Investigation Officer filed a memo

before the jurisdictional court for permission to conduct

further investigation under Section 173(8) Cr.P.C. and on

obtaining the permission, he proceeded with the further

investigation and on 03.09.2020 and 04.09.2020 arrested

accused Nos.4 and 5 respectively. Thereafter, the present

petitioner came to be apprehended on 09.09.2020.

3. The petitioner herein, who is arraigned as accused

No.6, filed a petition under Section 439 of Cr.P.C. before the

Special Court which was rejected in Criminal Misc.

No.5296/2020 vide Order dated 10.11.2020.

4. The learned Senior Counsel appearing for

petitioner has vehemently contended that the petitioner is

innocent and he is not involved in any offence much less the

one now alleged against him by the prosecution. He would

contend that after his arrest, no contraband substances have

been recovered from his possession and he has been

arraigned as an accused on an allegation that he erased the

data from his mobile phone and thereby committed offences

punishable under Sections 201 and 204 of IPC. He contends

that there is absolutely no material collected for such

allegations made by the prosecution since, in spite of taking

the petitioner to Police custody for a period of more than 12

days, the prosecution has not collected any material to

substantiate the same. Learned senior counsel has drawn the

attention of this Court to the mahazar drawn by the Police on

10.09.2020 and submits that the articles which are now

alleged to have been seized from his house cannot be said to

be incriminating materials so as to connect the petitioner with

the alleged offence. It is his further contention that accused

Nos.1 to 3 against whom there are serious charges including

seizure of narcotic drugs, have been enlarged on bail and

even accused No.5 has been granted bail by this Court. He

submits that the petitioner hails from a respectable family

and he is the sole bread winner in the family and his father

was a retired Brigadier of the Indian Army. The petitioner is

the Founding-Member of one Rachana Kala Foundation, a

Charitable Institution which promotes Indian Culture and

Music and he has contributed to the social cause etc. He

further contended that Section 37 of the NDPS Act will not

attract to the case on hand since there is no contraband

material seized at the instance of the petitioner and further,

there are reasonable grounds to believe that petitioner is not

guilty of the offences alleged. Accordingly, he seeks to allow

the petition.

5. The learned Spl.P.P. appearing for the respondent

has filed statements of objection. He has opposed grant of

bail to the petitioner contending that the total quantity of

drugs seized in this case from the possession of accused

Nos.1 to 3 is 1.5 kgs. of cocaine and 914 gms. of ecstasy

drugs [1930 tablets] which are valued at Rs.1,50,00,000/-

[Rupees One Crore Fifty Lakhs only]. Considering the high

value of the substances seized, it was necessary to find out if

there are other persons involved in financing and trafficking

of illicit drugs and narcotic substances. Therefore, charge-

sheet was filed keeping open further investigation. He

contends that the further investigation revealed the

involvement of accused Nos.4 to 6 and therefore, they were

also arrested. He contends that the petitioner and others

were financing accused Nos.3 to 5 for trafficking of drugs and

narcotic substances and also consumption of said contraband

in the parties organized by accused No.5. The material

collected so far reveal that the accused have also committed

offences punishable under Section 27A of the NDPS Act and

Sections 201 and 204 of IPC and accordingly, the said

Sections are also invoked for the purpose of investigation. He

further contends that a search was conducted in the house of

the petitioner at Bengaluru and a ganja crusher, hookah pot,

a laptop as well as 2 plastic pipes and a mobile phone have

been seized and the material seized have been subjected to

FSL. It is his further contention that the petitioner has given

voluntary statement admitting that he used to supply drugs in

the parties arranged by accused No.5 in hotels, pubs, dance

bars and music parties as well as stalls in the farm houses.

The accused persons along with the petitioner were procuring

drugs from different parts of the country. He therefore

contends that there is substantial evidence collected by the

Investigation Officer. Further, the petitioner who was in close

contact with accused No.1 has exchanged number of chat

massages with the said accused. Since further investigation

is still pending and Police have to collect sufficient information

and materials from the petitioner about his involvement in the

offences along with other accused persons, the petitioner is

not entitled for the relief he has sought in the petition. He

contends that the petitioner is a rich and influential person

having connection with anti-social elements, therefore if he is

released on bail, there is likelihood of tempering with the

evidence and threatening the witnesses and there are also

chances of fleeing from justice. Accordingly, he seeks to

reject the petition.

6. Having heard the learned counsel appearing on

both side and having perused the material on record, it is

seen that accused Nos.1 to 3 came to be arrested on

02.11.2018 and from their possession, a total quantity of 1.5

kgs. cocaine and 914 gms. of ecstasy drugs in the form of

1930 pills as well as Toyota car, Honda Activa bike and other

articles were seized. Thereafter, accused Nos.4 and 5 came

to be arrested on 03.09.2020 and 04.09.2020 respectively.

Material on record disclose that the Investigation Officer

sought permission from the Court to conduct further

investigation and the learned Special Judge vide Order dated

03.09.2020 permitted to conduct further enquiry in this case

as per requisition filed under Section 173(8) of Cr.P.C.

Subsequent to the arrest of accused Nos.4 and 5, their

voluntary statements are stated to have been recorded and

the present petitioner arraigned as accused No.6 came to be

arrested on 10.09.2020.

7. As per seizure panchanama dated 10.09.2020,

the following articles are alleged to have been seized from the

house of petitioner:

a) MSI A6200 Laptop,

b) a plastic crusher to crush ganja,

c) a hookah pot

d) 2 plastic pipes.

8. The prosecution has contended that the petitioner

and others are involved in financing accused Nos.3 to 5 and

they are involved in trafficking of drugs and narcotic

substances generally and particularly for consumption of

drugs and they were distributing the same in the parties

organized by accused No.5. It is the case of prosecution that

the accused/petitioner has committed offences punishable

under Section 27A of the NDPS Act and Sections 201 and 204

of IPC.

9. It is not in dispute that the petitioner was

arrested on 10.09.2020 and initially after his remand to the

judicial custody he was taken to Police custody for

interrogation from 16.09.2020 to 21.09.2020 and again from

21.09.2020 to 28.09.2020. However, except the recovery

alleged to have been made on 10.09.2020, there are no other

contraband articles recovered from his possession. The

prosecution has alleged that the petitioner was financing

other accused persons to deal with narcotic drugs etc. To

substantiate the same, there are no materials placed. It is

not in dispute that accused Nos.1 to 3 from whom a large

quantity of narcotic drugs were seized have been enlarged on

bail. Further, accused No.5 was also granted bail by this

Court on 04.01.2021 in Crl.P. No.6847/2020.

10. The learned Spl.P.P. appearing for the respondent

has vehemently contended that grant of bail to accused No.5

is not a ground to enlarge the present petitioner, since the

coordinate bench of this Court while enlarging the said

petitioner has not taken into consideration the relevant facts

and also not considered the bar created under Section 37 of

the NDPS Act to grant bail in a case where there is a prima

facie case made out. Hence, he contends that doctrine of

parity is not applicable. He has placed reliance on a decision

of the Hon'ble Apex Court in the case of Satpal Singh Vs.

State of Punjab, reported in (2018)13 SCC 813 in

support of his arguments.

11. In the instant case, this Court need not look into

the reasons assigned by the coordinate bench while enlarging

one of the accused viz., accused No.5 on bail. The facts of

the case would make it clear that when accused Nos.1 to 3

were arrested, their voluntary statements were recorded.

However, it is not the case of prosecution that the said

accused have given any statement implicating the present

petitioner as the one who was supplying drugs to them or

involved in financing for drug trafficking.

12. The learned Spl.P.P. by placing reliance on a

decision of the Hon'ble Apex Court in the case of Mehboob

Ali and another Vs. State of Rajasthan reported in

(2016)14 SCC 640 has contended that merely because the

petitioner was not in possession of any contraband

substances and nothing has been recovered at his instance,

that itself is not a ground to grant the relief. In the said

case, from the statements of the accused who were arrested,

led to the arrest of co-accused and ultimately, the statement

led to unearth the racket of fake currency notes. As already

observed, even after the arrest of present petitioner, no

contraband articles have been seized. Further, there is

nothing to show from the statements of the co-accused viz.,

accused Nos.1 to 3 that the petitioner was either financing or

trafficking in drugs.

13. The learned Spl.P.P. has contended that during

the course of further investigation, statements of several

witnesses have been recorded and their statements would

reveal that the petitioner, accused Nos.4 and 5 and other

accused persons used to organize parties and attend parties

wherein they were supplying cocaine and ecstasy pills and

even these accused were consuming drugs. Though such

statements have been recorded, the veracity of their

statements have to be gone into during the course of trial. At

this stage there are no material to substantiate the same.

14. The learned Spl.P.P. for the respondent has also

contended that the voluntary statement of the petitioner

inculpate himself in the alleged crime and therefore there is

a prima facie case against the petitioner. Though the said

statement is not part of the record, it is relevant to extract

para 155 of the Judgment of the Hon'ble Apex Court reported

in AIR 2020 SC 5592 in the case of Tofan Singh Vs. State

of Tamil Nadu.

155. 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 provisions 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 trial of an offence under the NDPS Act."

15. For the foregoing reasons, I am of the view that

there are no sufficient material at this stage to hold that there

are reasonable grounds or a prima facie case against the

petitioner to deny bail to him invoking the provisions of

Section 37 of the NDPS Act. Hence, the following:

ORDER

Petition is allowed.

The petitioner/accused No.6 is ordered to be released on

bail in Crime No.588/2018 of Banaswadi Police Station,

Bengaluru City, for offences under Sections 21(b), 21(c),

22(c), 27A of the NDPS Act, Section 14 of the Foreigners Act,

1946 and Sections 201 and 204 of IPC, subject to following

conditions:

(1) The petitioner shall execute a personal bond in a sum of Rs.2,00,000/- [Rupees Two Lakhs only] with two solvent sureties for likesum to the satisfaction of the jurisdictional Court.

(2) The petitioner shall not involve in tampering the prosecution witnesses and shall not hamper the case of prosecution in any manner.

(3) The petitioner shall appear before the Investigation Officer as and when his presence is necessary for the purpose of further investigation, if any.

(4) The petitioner shall mark his attendance once in a month preferably on a second Saturday between 10.00 am & 5.00 pm. till conclusion of the trial or until further orders.

(5) The petitioner shall furnish proof of his correct residential address and also furnish the mobile/telephone numbers, e-mail ID to the jurisdictional Court.

(6) The petitioner shall not travel outside the country till conclusion of the trial and he shall be regular in attending the court proceedings.

(7) The petitioner shall not involve in any criminal activity.

Violation of any of the above conditions will disentitle

the petitioner the benefit of this order.

SD/-

JUDGE

Ksm*