3. Facts, in brief, germane are as follows:-
4. The Police record the statements of accused Nos. 1
and 2 wherein they have informed that they got into the habit
of possession and consumption of ganja from accused No.3,
the petitioner and he was not available for questioning. On
24-08-2018 accused Nos.1 and 2 were enlarged on bail and
the petitioner is seen absconding. The police file a charge
sheet against accused Nos. 1 and 2 and show the petitioner
as an absconder in the charge sheet filed on 9-07-2019. The
concerned Court, takes cognizance of the offence as afore-
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quoted and registers Special case No.131 of 2019. Noticing
the fact that the petitioner was shown as absconder, a split
charge sheet was drawn against the petitioner on 4-03-2022
in Special C. No.24 of 2022. The petitioner claims that he
then became aware of the proceedings against him, as he
was not in the country at the time when the trial was on. On
getting to know of the proceedings, the petitioner has
preferred the subject petition seeking quashment of the
entire proceedings.
5. The learned counsel appearing for the petitioner
would vehemently contend that apart from showing the
petitioner as absconder, no attempts are made to reach the
petitioner. It is his case that the name of the petitioner is
drawn only on confessional statements of accused Nos. 1
and 2 recorded under Section 67 of the Act. It is his
submission that statements of co-accused do not have any
evidentiary value, unless they are corroborated with the acts
of the petitioner. He would seek quashment of entire
proceedings on the said ground.
6. Per contra, the learned High Court Government
Pleader appearing for the respondent would vehemently
refute the submissions to contend that the petitioner has
been absconding, not available for trial, charge sheet is filed
and, therefore, he must come out clean in the trial. He is not
in India. Therefore, he has not appeared before the
concerned Court on any occasion. Innumerable non-bailable
warrants issued have all become unexecutable, as the
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petitioner is beyond the shores of the nation. He would,
nonetheless, seek dismissal of the petition.
7. I have given my anxious consideration to the
submissions made by the respective learned counsel and
have perused the material on record.
8. The afore-narrated facts are not in dispute. It is a
matter of record that when the crime was registered and the
house was searched, it related only to accused Nos. 1 and 2.
Statements of accused Nos. 1 and 2 were recorded under
Section 67 of the Act. Section 67 of the Act reads as follows:
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."
(Emphasis supplied)
The empowered officer is entitled to record the
statement of the accused in terms of the afore-quoted
provision of the Act. The statements of accused 1 and 2
were recorded. When the search was conducted the
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petitioner was not found anywhere. It is the case of accused
Nos. 1 and 2 while giving statements that the petitioner ran
away from the place and it is because of the petitioner that
they have got into the habit of consuming ganja. These are
statements rendered by accused Nos. 1 and 2. This is again
a matter of record.
9. The petitioner is dragged into the crime as accused
No.3 and in the charge sheet as absconder only on the
confessional statements made by accused Nos. 1 and 2.
There is no corroboration of any of the fact that became
attachable to the petitioner. Therefore, it becomes an
admitted fact that the petitioner is got into the web of crime
only on the confessional statements of the co-accused
without any spec of corroboration. In such circumstances,
whether further proceedings should be permitted against the
petitioner is required to be answered. The answer need not
detain this Court for long or delve deep into the matter.
10. The Apex Court in the case of TOFAN SINGH v.
STATE OF TAMIL NADU has held 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
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statement in the trial of an offence under the NDPS
Act."
(Emphasis supplied)
The Apex Court in the case of STATE v. PALLULABID
AHMAD ARIMUTTA 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 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
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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 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)
The Judgment in the case of TOFAN SINGH is
reiterated in BALWINDER SINGH v. NARCOTICS
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
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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 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 Singh 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.
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... ... ...
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:
"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)
These judgments are again reiterated by the Apex
Court in FIRDOSKHAN KHURSHIDKHAN v. STATE OF
GUJARAT 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
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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 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
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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)."
(Emphasis supplied)
11. On a coalesce of the judgments rendered by the
Apex Court as quoted hereinabove, what would unmistakably
emerge is that, the proceedings against the petitioner cannot
be permitted to be continued, as there is not an iota of
corroboration that would pin the petitioner to the offences,
except the voluntary / confessional statements of the co-
accused i.e., accused Nos. 1 and 2, 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 statements, would become an abuse of
the process of law and result in patent injustice. The petitioner,
who is a student pursuing his Masters elsewhere, beyond the
shores of the nation, should not be made to suffer for the
voluntary / confessional statements of the co-accused.
12. For the aforesaid reasons, the following:
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ORDER
(i) Criminal petition is allowed.
(ii) The proceedings in split up Special Case No.24 of 2022
arising out of Special Case No.131 of 2019 in Crime No.
94 of 2018 pending before the Principal District and
Sessions judge and Special Court, Udupi 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 any other accused pending before any other
forum.
Consequently, I.A.No.1 of 2023 also stands disposed."
6. As is clear from the aforesaid judgment, this Court
places reliance upon earlier judgments of the Hon'ble Apex Court
and came to the conclusion that, mere confessional statement of
the co-accused could not be made the basis to initiate criminal
action as against the another co-accused, especially when the
subject matter of the proceeding being the methamphetamine and
methylene-dioxy methamphetamine (MDMA) in question, was not
recovered from the custody and possession of the petitioner. In the
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instant case, it is an undisputed fact from the material on record, in
particular, the alleged confessional statement of accused No.1
could not be relied upon or made the basis by respondents to
initiate the impugned criminal proceedings, which deserves to be
quashed since continuation of the same would amount to abuse of
process of law, warranting interference in the present petition.
7. Accordingly, I pass the following;
ORDER
i. The petition is hereby allowed.
ii. The impugned criminal proceedings in Spl.C.No.73/2025
(arising out of Cr.No.92/2025 of Udupi Town Police
Station) pending on the file of the Principal District and
Sessions Judge, Udupi, insofar as the petitioner-accused
No.2 is concerned, are hereby quashed.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
BMC
List No.: 4 Sl No.: 1
