Karnataka High Court
Ms Rebecca Maggie Pereira vs Union Of India on 7 March, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 13827 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 13827 OF 2024
BETWEEN:
MS. REBECCA MAGGIE PEREIRA
AGED ABOUT 29 YEARS
D/O. TYRO PEREIRA
NO.47, YAUSHUS MANSION,
4TH CROSS ROAD,
KSR MAIN ROAD KALKERE,
BANGALORE - 560043
...PETITIONER
(BY SMT. LAKSHA KALAPPA B., ADVOCATE)
AND:
UNION OF INDIA
THROUGH, INTELLIGENCE OFFICER
NARCOTICS CONTROL BUREAU
BENGALURU ZONAL UNIT
Digitally signed REP. BY SPECIAL PUBLIC PROSECUTOR
by NAGAVENI HIGH COURT OF KARNATAKA
Location: High
Court of BANGALORE-560001
Karnataka ...RESPONDENT
(BY SRI. GOWTHAMDEV C. ULLAL, CGC)
THIS CRL.P IS FILED U/S 482 CR.P.C (U/S 528 BNSS)
PRAYING TO QUASH THE COMPLAINT AND CHARGE
SHEET/INFORMATION REPORT IN NCB F.NO.48/1/29/2022/BZU
FILED IN SPL.C.NO.2076/2023, PENDING ON THE FILE OF THE
HONBLE XXXIII ADDL. CITY CIVIL AND SPECIAL JUDGE BENGALURU
(CCH-33) VIDE ANNEXURE-B AND CONSEQUENTLY QUASH THE
ENTIRE PROCEEDINGS IN SPL.C.NO.2076/2023 TO THE EXTENT
THEY RELATE TO THE PETITIONER HEREIN, ON THE FILE OF THE
HONBLE XXXIII ADDL. CITY CIVIL AND SESSIONS SPECIAL JUDGE,
BENGALURU (CCH-33) AND ETC.
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CRL.P No. 13827 of 2024
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA
ORAL ORDER
Heard the learned counsel Smt.Laksha Kalappa B.,
appearing for the petitioner and the learned CGC
Sri.Gowthamdev C. Ullal, appearing for the respondent.
2. The petitioner is before this Court seeking the
following prayer:
"(i) Quash the complaint and charge sheet /
information report in NCB F.No.48/1/29/2022/BZU filed in
SPL.C. No.2076/2023 pending on the file of the Hon'be
XXXIII Additional City Civil and S.Spl. Judge, Bengaluru
(CCH-33) vide ANNEXURE B and consequently quash the
entire proceedings in SplC.No.2076/2023 to the extent
they relate to the Petitioner herein, on the file of the
Hon'ble XXXIII Additional City Civil and Sessions Spl.
Judge, Bengaluru (CCH-33).
(ii) Issue any other order and grant such other and
further reliefs as this Hon'ble Court deems fit in the facts
and circumstances of the case, in the interest of justice."
3. This Court, in Crl.P.No.3/2024 qua the co-accused
has quashed the proceedings owing to the fact that they were
drawn into the web of crime only on voluntary statements,
which were contrary to law, without there being any
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corroborative material apart from the said statement. The
petitioner being co-accused is entitled to the same relief that is
granted to the other accused. This Court, has 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 allegedly contained ganja. What was
found was the telephone number of the petitioner on the
cover which led the police to interrogate and record
statement of the petitioner, which forms part of the
complaint so filed for the afore-quoted offences. Apart
from the confession statement recorded by the
respondent-police of the petitioner, there is no other
material that can pin down the petitioner, as parcel
though contained ganja, the address was not that of the
petitioner nor it was in the name of the petitioner, except
the mysterious printing of the telephone number on the
cover. The petitioner is said to have confessed to the
crime while recording the statement under Section 67 of
the NDPS Act. The complaint so filed against the
petitioner read as follows:
"on the basis of the voluntary statement of Mr.
Saikat Bhattacharrya S/o Sukanti Bhattacharrya Dated
30.11.2022, 01.12.2022, 02.12.2022 and the material
objects seized i.e. 109 Grams of Ganja on dated
30.11.2022 was arrested by Smt. Sheeja Sivaraman,
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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:
".... .... ....
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."
(Emphasis supplied)
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:
".... .... ....
(2021) 4 SCC 1
(2022) 12 SCC 633
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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 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
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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 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."
(Emphasis supplied)
12. The Judgment in the case of TOFAN SINGH is
reiterated in BALWINDER SINGH v. NARCOTICS
CONTROL BUREAU3 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
2023 SCC OnLine SC 1213
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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 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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"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."
(Emphasis supplied)
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
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
2024 SCC OnLine SC 680
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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 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)."
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(Emphasis supplied)
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;
(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
2024 SCC OnLine SC 520
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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:
"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
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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."
4. In the light of the order passed by this Court
(supra) and for the reasons aforementioned, the following:
ORDER
(i) The Criminal Petition is allowed; and
(ii) The proceedings in Spl.C.No.2076/2023 pending on
the file of the XXXIII Additional City Civil and
Sessions and Special Judge, Bengaluru (CCH-33),
qua the petitioner, stand quashed.
Sd/-
______________________
JUSTICE M.NAGAPRASANNA
KG
