Abdul Razak B U vs Union Of India
2022 Latest Caselaw 476 Kant

                           1




    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS 12TH DAY OF JANUARY, 2022

                        BEFORE

          THE HON'BLE MR. JUSTICE K.NATARAJAN

           CRIMINAL PETITION NO. 8998 OF 2021

BETWEEN

1 . ABDUL RAZAK B U
    S/O UMAR B M
    AGED ABOUT 28 YEARSs
    R/AT GUNDU RAO BADAVANE
    SHANIVARASANTHE TALUK
    SOMAWAR PETE
    KODAGU DISTRICT-571 235

   NOW R/AT AECS LAYOUT
   MARATHAHALLI DODDANEKKUNDI
   BENGALURU

2 . RASHID S H @ RISHI
    S/O HASINAR
    AGED 30 YEARS,
    R/AT GUNDU RAO BADAVANE
    SHANIVARASANTHE TALUK
    SOMAWAR PETE
    KODAGU DISTIRCT -571 235
    NOW R/AT KUNDALAHALLI
    BENGALURU
                                       ... PETITIONERS

(BY SRI HASHMATH PASHA, SENIOR ADVOCATE
 FOR SRI NASIR ALI, ADVOCATE)
                              2




AND

UNION OF INDIA
NARCOTIC CONTROL BUREAU
BENGALURU ZONAL UNIT
BENGALURU

(REPRESENTED BY
LEARNED SPECIAL PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU)                                  ... RESPONDENT

(BY SRI MADHUKAR M DESHPANDE, (SCGS) SPL. COUNSEL)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO
ENLARGE       THE     PETITIONER      ON     BAIL     IN
NCB.NO.48/1/19/2021/BZU OF NCB, BANGALORE FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 8(c), 20(b)(ii), C23,
25,27,27A,28,29 OF NDPS ACT.

     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 04.01.2022 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:

                          ORDER

This petition is filed by the petitioner accused Nos.6

and 7 under Section 439 of Cr.P.C for granting the regular

bail in NCB No.48/1/19/2021/BZU registered by NCB

Bengaluru now pending on the file of XXXIII Additional City

Civil and Sessions Judge for the offence punishable under

Section 8(c) 20(b) (ii) c, 23, 25, 27, 27A, 28, 29 of NDPS

Act.

2. Heard the learned senior counsel for the

petitioner and special counsel for NCB.

3. The case of the prosecution is that on

30.09.2021 the complainant received a credible

information, that two persons are transporting ganja in a

Maruthi Swift car. After receiving the information he has

obtained the permission from the higher authority, then he

proceeded to the spot near the shop, namely Lucky

International at Kundanahalli and intercepted a white

colour Maruthi Swift Car KA-12-MA-6697 where two

persons were sitting in the car and after the enquiry and

searching car they found 136 kg 800 gms of ganja.

Subsequently, the police arrested the accused persons by

registering the case, during the investigation on the

voluntary statement of the accused No.2 the police have

also seized 1.920 kgs of ganja at the instance of the

accused No.2 from his house, totally 139.735 ganja were

seized.

4. It is further alleged that during the interrogation

the said accused persons have named the present

petitioners therefore the petitioner was summoned by NCB

by issuing notice and they appeared on 2.10.2021 then

they were produced before the Special Court and later was

taken to the police custody for 4 days, thereafter they

were remanded to judicial custody. Their bail petition

came to be rejected by the special court on 9.11.2021

hence, they are before this court.

5. The learned senior counsel for the petitioners,

has vehemently contended that the petitioners are

innocent of the alleged offence, they have been falsely

implicated by the NCB, only on the basis of voluntary

statement of the co-accused persons and nothing has been

recovered. The allegations that previously this petitioner

said to have involved in distribution of ganja by making a

packet and selling, but no material found and recovered

from these petitioners. They have been arrested by the

police when they are proceeding from Hanagal to Theertha

Halli on 1.10.2021. They were kept in illegal custody and

thereafter, the petitioner was also taken to police custody

from the court but nothing is recovered. Therefore they

are entitled for bail. Hence prayed for allowing the petition.

6. The learned Senior Counsel also relied upon the

judgment of Hon'ble Supreme Court and order passed by

the single judge of this Court as below:-

1. In Crl.P.No.4605/2021 dated 04.10.2021 in case of Abdul Khader Ghouse Pheer Vs Union of India.

2. 2020 (13) SCC page 447 Sujit Tiwari Vs State of Gujarat.

3. In Crl.P.No.6322/2020 dated 17.12.2020 Shivaraj Urs Vs Union of India.

4. In Crl.P.No.6587/2020 dated 27.11.2020 in case of Abu Hashir Vs Union of India.

5. 2009 (12) SCC page 161 Union of India Vs Bal Mukund

6. 2021 (4) SCC Page 1 Tofan Singh Vs. State of Tamil Nadu

7. 2011 (1) Crime 508 (Kant) K.K Rejji And Others v. State By Murdeshwar Police

8. 2012 (4) KCCR 2803 Punjab Mehboob Vs State of Karnataka

7. Per contra, the learned special counsel appearing

for NCB has serious objection for granting bail petition and

contended that the accused persons 1 and 3 were caught

red handed and seized 139.7 kgs of ganja and during the

investigation it was revealed that the accused Nos.2 and 4

were involved in distribution and supply of the ganja and

previously the ganja were supplied to accused Nos. 6 and

7 as they were running saloon shop and bakery, they used

to put it in small packets and sell it to customers. The

income of accused No.6 which was deposited in huge

amount in the bank clearly reveals that he has involved in

drug peddling activities. The accused No.7 also selling the

ganja to the public. The accused persons used service

providers name of Dunzo and Swiggy but infact they

created the cardboard box brand name, in their office

including the uniform in order to show they are service

providers but infact they used to sell ganja. There is a bar

under Section 37 of the NDPS Act for granting bail. The

voluntary statement of the accused under Section 67 of

Indian Evidence Act, it is admissible and still investigation

is under progress and one more main accused is still

absconding. Section 27 and 27 (A) will come to the rescue

of the prosecution, therefore prayed for rejecting the bail

petition.

8. In reply to the arguments of the respondent

counsel, the learned senior counsel has further contended

that the statement under Section 67 of NDPS Act is

inadmissible without any recovery and the provision under

Section 67 of NDPS Act is as good as Section 25 of Indian

Evidence Act and even otherwise the statement under

Section 67 is applicable only prior to registering the case

and till the seizure is available to an officer under Section

42 of the NDPS Act, the stage of Section 42 is already over

and now the stage is under Section 53 A. Therefore,

without any recovery the petitioner cannot be kept in jail,

it is violation of right and liberty of petitioner. The accused

were arrested in respect of past conduct which is not

permissible and the confession statement is irrelevant at

this stage without any recovery and hence prayed for

granting bail.

9. Having heard the arguments perused the records

as well as the CD produced by the special counsel for the

respondent, reveals that the respondent NCB allegedly

have been apprehended the accused Nos.1 and 3 by

intercepting a car and seized 136.8 kgs of ganja and after

registering the case on the voluntary statement of accused

No.2 the police also seized 1 kg 920 gms totally 139.735

kgs of ganja and it is alleged that during the course of

investigation and on the voluntary statement the police

have also arrested some other accused persons and they

have revealed the name of these petitioners who also said

to be involved in drug peddling activities. The NCB police

said to have issued notice to the accused Nos.6 and 7 and

on 2.10.2021 they have arrested and in the voluntary

statement, the accused said to have admitted and gave

confession statement which were recorded as per Section

67 of the NDPS Act. Admittedly there is no recovery of

any drugs at the instances of accused Nos.6 and 7. The

learned senior counsel has relied upon the judgment of

supreme court in case of Tofan Singh Vs. State of Tamil

Nadu stated supra, wherein the supreme court has held

the statement recorded under Section 67 of NDPS Act is

nothing but a confessions statement recorded by the

Investigation Officer under Section 25 of Indian Evidence

Act, and the same reads under:-

"i) Supreme Court of India in the case of Tofan Singh Vs. State of Tamil Nadu has held that the officers invested with power under

Section 53 of the NDPS Act are "Police Officers" within the meaning of Section 25 of the Evidence Act, 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;

Hon'ble Supreme Court held in (2021) 4 SCC in case of "Tofan Singh Vs State of Tamil Nadu, as below

60. Secondly, it is only an officer referred to in section 42 who may use the powers given under section 67 in order to make an "enquiry" in connection with the contravention of any provision of this Act. The word "enquiry" has been used in section 67 to differentiate it from "inquiry" as used in section 53A, which is during the course of investigation of offences.

As a matter of fact, the notifications issued under the Act soon after the Act came into force, which will be referred to later in the judgment, specifically speak of the powers conferred under section 42(1) read with section 67. This is an important executive reading of the NDPS Act, which makes it clear that the powers to be exercised under section 67 are to be exercised in conjunction with the powers that are delineated in section 42(1).

158.1 (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.

158.2 (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.

The Single Judge of this court in Abdul Khader Ghouse

Pheer Vs Union of India case has held that when there

is no recovery as per Section 27 of Indian Evidence Act,

mere confession statement is not admissible without

disclosure of any fact which were recovered. The another

coordinate bench in Shivaraj Urs case had held the

statement of the accused under Section 67 of the NDPS

Act is nothing but a statement under Section 161 of

Cr.P.C. Also in another case co-ordinate bench in Abu

Aziz Case taken similar view and granted bail.

10. The learned counsel appearing for the

respondent NCB also produced some document in a sealed

cover in respect of progress of the investigation. And also

perused the same, which reveals the investigation is still

under progress, based upon the voluntary statement of the

Petitioners, the NCB have seized some documents in

respect of the involvement of the petitioner in the drug

peddling activities and the NCB also searching one more

accused person, he was not yet arrested. The co-accused

persons confession statement reveals, involvement of this

petitioner in drug peddling activities and distribution of

ganja. This Court cannot disclose the names of the other

accused and the investigating paper produced by the

respondent in the sealed cover as it may affect the further

investigation and may prejudice the case of the

prosecution case at this stage.

11. The NCB during the investigation they have

seized so many ATM cards and other documents regarding

depositing amount and having used the service providers

that is DUNZO and SWIGGY for the purpose of distributing

the ganja to the public, such being the case at this stage it

cannot be said there is nothing recovered by the NCB on

the voluntary statement of this petitioner from their

possession. The court cannot conduct mini trial and

express any opinion on the merits of the case, while

considering the bail petition and it may prejudice the case

of the prosecution. If the petitioner is granted bail,

there is every possibility of tampering the prosecution

witnesses are not ruled out, the alleged offences are

serious one i.e., drug peddling activities. Therefore

pending investigation, the petitioners are not entitled for

bail.

Accordingly, the bail petition of this petitioner is

hereby dismissed.

Sd/-

JUDGE

AKV