1

Reserved on : 02.07.2024

Pronounced on : 19.07.2024

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 19

TH

DAY OF JULY, 2024

BEFORE

THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

CRIMINAL PETITION No. 1850 OF 2023

BETWEEN:

MR. PARITOSH CHANDRASHEKAR KULKARNI

S/O CHANDRASHEKAR KULKARANI

AGED ABOUT 24 YEARS

RESIDENT OF PLOT NO.18

NADBRAMHA PIPELINE ROAD

NICE WEIGH BRIDGE

GULMOHAR VIHAR COLONY, NASHIK

MAHARASHTRA - 422 007.

PRESENTLY R/AT NO.729

JONES ST. APT 508

SAN FRANCISCO

CALIFORNIA - 94109

... PETITIONER

(BY SRI MAHANTESH SHETTAR, ADVOCATE)

AND:

STATE OF KARNATAKA

BY MANIPAL POLICE STATION

UDUPI SUB-DIVISION, UDUPI

REPRESENTED BY ITS

STATE PUBLIC PROSECUTOR

R

2

HIGH COURT BUILDING

BENGALURU – 560 001.

... RESPONDENT

(BY SRI THEJESH P., HCGP)

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 O F

CR.P.C., PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN SPLIT

UP SPL.C.NO.24/2022 ARISING OUT OF SPL.C.NO.131/201 9 IN

CR.NO.94/2018 REGISTERED ON 12.08.2018 FOR THE OFFE NCE

P/U/S. 8C, 20(B)(II)(b) OF N.D.P.S. ACT PENDING ON THE FILE OF

THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, UDUPI.

THIS CRIMINAL PETITION HAVING BEEN HEARD AND

RESERVED FOR ORDERS ON 02.07.2024, COMING ON FOR

PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWIN G:-

ORDER

The petitioner/accused No.3 is before this Court ca lling in

question entire proceedings in split up Special C. No. 24 of 2022

arising out of Special C.No.131 of 2019 concerning Crime No.94 of

2018 registered for offences punishable under Secti ons 8C and

20(B)(II)(b) of the Narcotic Drugs and Psychotropic Substances Act,

1985 (‘the Act’ for short).

2. Heard Sri Mahantesh Shettar, learned counsel ap pearing

for the petitioner and Sri P Thejesh, learned High Court

Government Pleader appearing for the respondent.

3

3. Facts, in brief, germane are as follows:-

The petitioner, at the relevant point in time, was a student of

B.Tech in the discipline of Chemical Engineering at Manipal Institute

of Technology, Manipal. He was a student between 2016 and 2020.

He completes his studies and is pursuing higher stu dies in the

United States of America – M.S. in Chemical Enginee ring at

Columbia University. The issue in the lis is what happened between

2016 and 2020. On 12-08-2018, a suo motu crime comes to be

registered by the respondent in Crime No.94 of 2018 for the afore-

quoted offences. The petitioner was arraigned as accused No.3. The

arraigning of the petitioner happens on account of statements of

accused Nos. 1 and 2 recorded by the Police. It is the case of the

prosecution that on 12-08-2018 at around 12 p.m. th e police

conduct a search in a particular house near Gurukripa apartment

and seized 1 kg. and 712 gms. of ganja from the han ds of accused

Nos. 1 and 2 where accused Nos. 1 and 2 were staying. It is alleged

that the petitioner/accused No.3 ran away from ther e. Accused

Nos. 1 and 2 were taken into custody and the aforesaid quantity of

ganja was seized.

4

4. The Police record the statements of accused Nos. 1 and 2

wherein they have informed that they got into the h abit 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 p etitioner is

seen absconding. The police file a charge sheet ag ainst 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-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 petitione r would

vehemently contend that apart from showing the peti tioner as

absconder, no attempts are made to reach the petitioner. It is his

5

case that the name of the petitioner is drawn only on confessional

statements of accused Nos. 1 and 2 recorded under S ection 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 P leader

appearing for the respondent would vehemently refut e 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 occa sion.

Innumerable non-bailable warrants issued have all b ecome

unexecutable, as the 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 su bmissions

made by the respective learned counsel and have per used the

material on record.

6

8. The afore-narrated facts are not in dispute. I t is a matter

of record that when the crime was registered and th e 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:

“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 pu rpose

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 an d

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 t he Act. The

statements of accused 1 and 2 were recorded. When the search

was conducted the petitioner was not found anywhere . It is the

case of accused Nos. 1 and 2 while giving statement s that the

petitioner ran away from the place and it is becaus e of the

7

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 co nfessional

statements made by accused Nos. 1 and 2. There is no

corroboration of any of the fact that became attach able 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 sho uld 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

1

has held as follows:

“…. …. ….

1

(2021) 4 SCC 1

8

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 wo uld

be barred under the provisions of Section 25 of the

Evidence Act, and cannot be taken into account in o rder

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 in the case of STATE v. PALLULABID AHMAD

ARIMUTTA

2

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 im pugned

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 Ka r

1294]

,

[Munees Kavil Parambath v. State of Karnataka, 202 0

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 appea rs,

prima facie, that no substantial material was avail able

with the prosecution at the time of arrest to conne ct the

respondents with the allegations levelled against t hem of

2

(2022) 12 SCC 633

9

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 fo und to be

in possession of commercial quantities of psychotro pic

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 a n

offence under the NDPS Act. In the teeth of the afo resaid

decision, the arrests made by the petitioner NCB, o n the

basis of the confession/voluntary statements of the

respondents or the co-accused under Section 67 of t he

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 alleg ations 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 [Mu nees 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 OnL ine Kar

10

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

3

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 dispu te

that Balwinder Singh was not apprehended by the NCB officials

from the spot where the naka was laid and that Satn am

Singh alone was apprehended in the Indica car. The version of

the prosecution is that after Satnam Singh was arre sted,

his statement was recorded under Section 67 of the NDPS

Act wherein he ascribed a specific role to the co-a ccused

- Balwinder Singh and the Sarpanch. The NCB officer s

claimed that they were on the lookout for both of t hem

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, Amrit sar.

Permission was taken from the concerned Court to

take Balwinder Singh into custody in the instant ca se 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.

3

2023 SCC OnLine SC 1213

11

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 ro le

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 l aid down

in Tofan Singh (supra), there is no other independe nt

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

3

and the offence for which he

has been charged snaps conclusively and his convict ion order

cannot be sustained.

28. As a result of the above discussion, we are of the

opinion that Balwinder Singh deserves to be acquitt ed 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 acc used 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 probabi lity” 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 t he

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

12

of the contraband has to be proved by the prosecution beyond

reasonable doubt.”

(Emphasis supplied)

These judgments are again reiterated by the Apex Co urt in

FIRDOSKHAN KHURSHIDKHAN v. STATE OF GUJARAT

4

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 fr om 4.30

p.m onwards, no effort was made by any of the NCB o fficials 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 s aid

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 a round

4 : 30 p.m. His signatures had been taken on

the panchnama(Exhibit-30) prepared at 9 : 00 p.m. a nd

thus, it does not stand to reason that the Intellig ence

Officer would defer arresting Anwarkhan(A-1) to a l ater

point of time because, as per the arrest memo(Exhib it-

43) his arrest is shown at 11 : 45 p.m. It seems th at this

4

2024 SCC OnLine SC 680

13

deferment in formal arrest of Anwarkhan(A-1) was on ly

shown in papers so that the Intelligence Officer co uld

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 confes sional

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) beca use the

manner in which the said statement was recorded lea ves 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 S hah

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 exerci se of

recording his statement under Section 67 of the NDP S

Act is full of doubt and creates grave suspicion. E ven

otherwise, the confession of the accused recorded u nder

Section 67 of the NDPS Act cannot be admitted in

evidence as a confession as had been held in the ca se

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 again st the

accused Firdoskhan(A-2) .”

(Emphasis supplied)

14

11. On a coalesce of the judgments rendered by the Apex

Court as quoted hereinabove, what would unmistakabl y 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 o f the nation,

should not be made to suffer for the voluntary / co nfessional

statements of the co-accused.

15

12. For the aforesaid reasons, the following:

O R D E R

(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 an d

Sessions judge and Special Court, Udupi stand quashed.

(iii) It is made clear that the observations made i n 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 fora.

Consequently, I.A.No.1 of 2023 also stands dispose d.

Sd/-

J

UDGE

bkp

CT:SS