Telangana High Court
C.Adithya Narayana Reddy vs The State Of Telangana on 10 February, 2025
Author: Juvvadi Sridevi
Bench: Juvvadi Sridevi
THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI
CRIMINAL PETITION No.1794 of 2025
O R D E R:
This Criminal Petition is filed under Section 528 of
Bharatiya Nagarik Suraksha Sanhita, 2023 (for short 'BNSS') (for
short 'BNSS') by the petitioner/accused No.8 to quash the
proceedings against him in SC NDPS.No.308 of 2024 on the file
of II Additional Metropolitan Sessions Judge at Nampally,
Hyderabad registered as FIR No.165 of 2024 on the file of
P.S.Karkhana. The offence alleged against the petitioner-accused
No.8 is under Section 27 of the NDPS Act, 1985 (for short 'Act').
02. Brief facts of the case are that on 03.07.2024, on
receiving credible information, the Sub-Inspector of Police, P.S.
Karkhana, went to the said place and found accused Nos.6 and 7
under the influence of psychotropic substance and were unable to
stand properly. Basing on the confession statement of
accused Nos.1 to 3 that the petitioner herein is the consumer, he
was arrayed as accused No.8 in the crime and a case in Crime
No.165 of 2024 was registered against the accused. After
completion of investigation, charge sheet was filed and the
learned Sessions Judge has taken cognizance and numbered the
case as S.C. NDPS No.308 of 2024.
03. Heard Sri T.Pradyumna Kumar Reddy, learned
Senior counsel representing Sri T.Anirudh Reddy, learned
counsel for the petitioner/ accused No.8 and Sri Jithender Rao
Veeramalla, learned Additional Public Prosecutor for respondent
No.1 - State.
04. Learned Senior Counsel appearing for the petitioner
submits that though the petitioner/accused No.8 is not present at
the scene of offence and nothing was recovered from his
possession, merely basing on the confession of co-accused, he
was falsely implicated in the case. The only allegation levelled
against the petitioner is that he is a consumer, however, medical
test was conducted on him to prove that he is a habitual
consumer of any narcotic substance. The remand report and FIR
do not disclose any incriminating material to proceed against the
petitioner and the only witnesses in the present case are the
Police officials and the panch witnesses and there is no
incriminating material seized from the petitioner. He further
submits that the petitioner is pursuing his final year Law Degree
in Symbiosis Law School, Hyderabad and his entire career will be
spoiled, if the proceedings against him are continued.
05. In support of his contention, learned Senior Counsel
relied on the judgment of the Hon'ble Apex Court in Surinder
Kumar Khanna v. Intelligence Officer, Directorate of Revenue
Intelligence 1, wherein, it was held as:
"6. For the present purposes, we will proceed on the footing that
the statements of co-accused were recorded under and in terms
of Section 67 of the NDPS Act. As regards such statements, a
Bench of two Judges of this Court after referring to and relying
upon the earlier judgments, observed in kanhaiyalal v. Union of
India as under : (SCC p.682, para 45)
"45. Considering the provisions of Section 67 of the NDPS Act
and the view expressed by this Court in Raj Kumar Karwal v.
Union of India 2 with which we agree, that an officer vested with
the powers of an officer in charge of a police station under
Section 53 of the above Act is not a "police officer" within the
meaning of Section 25 of the Evidence Act, it is clear that a
statement made under Section 67 of the NDPS Act is not the
same as a statement made under Section 161 of the Code,
unless made under threat or coercion. It is this vital difference,
which allows a statement made under Section 67 of the NDPS
Act to be used as a confession against the person making it and
excludes it from the operation of Sections 24 to 27 of the
Evidence Act."
7. Later, another Bench of two Judges of this Court in
Tofan Singh v. State of T.N. 3 was of the view that the matter
required reconsideration and therefore, directed that the matter
be placed before a larger bench. It was observed in Tofan
Singh as under: (SCC pp. 57-58, paras 40-42)
"40. In our view the aforesaid discussion necessitates a
re-look into the ratio of Kanhaiyalal v. Union of India 4. It is
more so when this Court has already doubted the dicta in
Kanhaiyalal case in Nirmal Singh Pehlwan v. Inspector,
Customs 5 wherein after noticing both Kanhaiyalal as well as
Noor Aga v. State of Punjab 6, this Court observed thus:
(Nirmal Singh Pehlwan case, SCC p. 302, para 15)
15. We also see that the Division Bench in Kanhaiyalal
case had not examined the principles and the concepts
underlying Section 25 of the Evidence Act, 1872 vis-a-vis
Section 108 of the Customs Act and the powers of a Customs
Officer who could investigate and bring for trial an accused in a
narcotic matter. The said case relied exclusively on the
(2018) 8 Supreme court Cases 271
(1990) 2 SCC 409: 1990 SCC (Cri) 330
(2013) 16 SCC 31: (2014) 6 SCC (cri) 196
(2008) 4 SCC 668: (2008) 2 SCC (Cri) 474
(2011) 12 SCC 298: (2012) 1 SCC (Cri) 555
(2008) 16 SCC 417: (2010) 3 SCC (Cri) 748
judgment in Raj Kumar Karwal case. The latest judgment in
point of time is Noor Aga case which has dealt very elaborately
with this matter. We thus feel it would be proper for us to follow
the ratio of the judgment in Noor Aga case particularly as the
provisions of Section 50 of the Act which are mandatory have
also not been complied with.
41. For the aforesaid reasons, we are of the view that
the matter needs to be referred to a larger Bench for
reconsideration of the issue as to whether the officer
investigating the matter under the NDPS Act would qualify as
police officer or not.
42. In this context, the other related issue viz.
whether the statement recorded by the investigating officer
under Section 67 of the Act can be treated as confessional
statement or not, even if the officer is not treated as police
officer also needs to be referred to the larger Bench, inasmuch
as it is intermixed with a facet of the first issue as to whether
such a statement is to be treated as statement under Section
161 of the Code or it partakes the character of statement under
Section 164 of the Code."
8. Thus, the issue whether statement recorded under
Section 67 of the NDPS Act can be construed as a confessional
statement even if the officer who recorded such statement was
not to be treated as a police officer, has now been referred to a
larger Bench.
9. Even if we are to proceed on the premise that
such statement under Section 67 of the NDPS Act may amount
to confession, in our view, certain additional features must be
established before such a confessional statement could be
relied upon against a co-accused. It is noteworthy that unlike
Section 15 of the Terrorist and Disruptive Activities Act, 1987 7
which specifically makes confession of a co-accused admissible
against other accused in certain eventualities; there is no such
similar or identical provision in the NDPS Act making such
confession admissible against a co-accused. The matter,
therefore, has to be seen in the light of the law laid down by this
Court as regards general application of a confession of a co-
accused as against other accused.
13. In the present case it is accepted that apart from
the aforesaid statements of co-accused there is no material
suggesting involvement of the appellant in the crime in question.
We are thus left with only one piece of material that is the
confessional statements of the co-accused as stated above. On
the touchstone of law laid down by this court, such a
confessional statement of a co-accused cannot by itself be taken
Similarly: Section 18 of the Maharashtra Control of Organised Crime Act, 1999.
as a substantive piece of evidence against another co-accused
and can at best be used or utilized in order to lend assurance to
the Court.
14. In the absence of any substantive evidence it
would be inappropriate to base the conviction of the appellant
purely on the statements of co-accused. The appellant is
therefore entitled to be acquitted of the charges leveled against
him. We, therefore, accept this appeal, set aside the orders of
conviction and sentence and acquit the appellant. The appellant
shall be released forthwith unless his custody is required in
connection with any other offence.
6. Learned Senior Counsel further relied on a decision
of the Hon'ble Apex Court in Parveen @ Sonu v. State of
Haryana 8, wherein, it was held as:
"12. It is fairly well settled, to prove the charge of conspiracy,
within the ambit of Section 120-B, it is necessary to establish
that there was an agreement between the parties for doing an
unlawful act. At the same time, it is to be noted that it is difficult
to establish conspiracy by direct evidence at all, but at the same
time, in absence of any evidence to show meeting of minds
between the conspirators for the intended object of committing
an illegal act, it is not safe to hold a person guilty for offences
under Section 120-B of IPC. A few bits here and a few bits there
on which prosecution relies, cannot be held to be adequate for
connecting the accused with the commission of crime of criminal
conspiracy. Even the alleged confessional statements of the co-
accused, in absence of other acceptable corroborative evidence,
is not safe to convict the accused. In the case of Indra Dalal v.
State of Haryana 9, this Court has considered the conviction
based only on confessional statement and recovery of vehicle
used in the crime. In the said case, while setting aside the
conviction, this Court has held in paragraphs 16 and 17 as
under:
"16. The philosophy behind the aforesaid provision is
acceptance of a harsh reality that confessions are extorted by
the police officers by practicing oppression and torture or even
inducement and, therefore, they are unworthy of any credence.
The provision absolutely excludes from evidence against the
accused a confession made by him to a police officer. This
provision applies even to those confessions which are made to a
2021 SCC Online SC 1184
(2015) 11 SCC 31
police officer who may not otherwise be acting as such. If he is a
police officer and confession was made in his presence, in
whatever capacity, the same becomes inadmissible in evidence.
This is the substantive rule of law enshrined under this provision
and this strict rule has been reiterated countlessly by this Court
as well as the High Courts.
17. The word "confession" has nowhere been
defined. However, the Courts have resorted to the dictionary
meaning and explained that incriminating statements by the
accused to the police suggesting the inference of the
commission of the crime would amount to confession and,
therefore, inadmissible under this provision. It is also defined to
mean a direct acknowledgement of guilt and not the admission
of any incriminating fact, however grave or conclusive. Section
26 of the evidence Act makes all those confessions inadmissible
when they are made by any person, whilst he is in the custody of
a police officer, unless such a confession is made in the
immediate presence of a Magistrate. Therefore, when a person
is in police custody, the confession made by him even to a third
person, that is, other than a police officer, shall also become
inadmissible.
14. On close scrutiny of evidence on record, we are
of the considered view that prosecution has failed to prove its
case, that the appellant herein, has conspired with other
accused for the offences for which he was charged. Except the
alleged confessional statements of the co-accused and in
absence of any other corroborative evidence, it is not safe to
maintain the conviction and sentence imposed upon the
Appellant. The findings recorded by the trial Court in convicting
the appellant mainly on the ground that he was one of the
conspirators for the crime in question, is erroneous and illegal.
The High court has not considered the evidence on record in
proper perspective and erroneously confirmed the conviction
and sentence imposed on the appellant."
7. Learned Senior Counsel also relied on a decision of
Hon'ble Apex Court in Balwinder Singh v. Narcotics Control
Bureau 10, wherein, it was held as:
"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
2023 SCC Online SC 1213
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."
8. On the other hand, learned Additional Public
Prosecutor opposed for quashing the proceedings stating that the
petitioner is a consumer and he is addicted to consume narcotic
drugs. There are specific allegations levelled against the
petitioner and the truth or otherwise of the allegations levelled
against the petitioner can only be known after conducting full-
fledged trial, hence, he prayed to dismiss the petition.
9. In the judgment of the Hon'ble Supreme Court in
Tofan Singh v. State of Tamil Nadu 11, it was held that the
confessional statements recorded under Section 67 of the Act,
1985, will remain inadmissible in the trial of an offence under the
Act, 1985.
10. Having heard both sides and perused the material on
record, the allegations against the petitioner/accused No.8 is that
he is a consumer. But, he was not present at the scene of offence
and nothing was recovered from his possession. As seen from
the averments of the charge sheet, during the course of
investigation, the Police have not conducted any medical test on
the petitioner to show that he consumed any narcotic substance or
he is a habitual consumer of any narcotic substance. Furthermore,
the petitioner was arrayed as accused in the case basing on the
confession statement of co-accused, which is inadmissible in the
trial of an offence under the Act, 1985, as per the judgment of the
Hon'ble Supreme Court in Tofan Singh's case. Except the
confessional statement of co-accused, there is no material to
show that he has purchased the narcotic substance or consumed
it.
(2021) 4 SCC 1
11. In view of the above discussion and in view of the
settled principle of law in the aforesaid judgments, the
continuation of proceedings against the petitioner-accused No.8
amounts to abuse of process of law, hence, the same are liable to
be quashed.
12. Accordingly, this Criminal Petition is allowed and the
proceedings against the petitioner-accused No.8 in
S.C.NDPS.No.308 of 2024 on the file of learned II Additional
Metropolitan Sessions Judge at Nampally, Hyderabad, are
hereby quashed.
As a sequel, miscellaneous applications, if any, pending
shall stand closed.
___________________
JUVVADI SRIDEVI, J
Date: 10.02.2025
BV
