Dismissed

Fardeen Feroz Khan v. Union of India and Anr.

Bombay HC8 Feb 2007REVN/424/2006

Case brief

AI extract

What is this about?

In this criminal revision, the Bombay High Court dismissed the petitioner's challenge to the Special Judge's order rejecting his claim for immunity under Section 64-A of the NDPS Act. The Court held that there was insufficient material to establish that the petitioner was an addict or that his involvement was limited to small quantities, noting that such matters require proof at the trial stage.

What did the court decide?

The Criminal Revision Application was dismissed as the impugned order did not suffer from any error apparent on the face of the record.

Fardeen Feroz Khan Vs Union of India and Anr. — Narcotics (NDPS) | Bombay HC (2007)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL REVISION APPLICATION NO. 424 OF 2006

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Fardeen Feroz Khan

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....Petitioner/
(Orig.Accd.no.2)

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versus

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1.Union of India
At the instance of
Narcotics Control Bureau
2.The State of Maharashtra ...Respondents.

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Mr.K.T.S.Tulsi, Sr.Counsel with Mr.A.R.Khan, Ms.
Niloufer Saiyed and Atiar Dey for the petitioner.

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Poornima Kantharia for NCB/Union of India.

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Satish Borulkar for the State.

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CORAM: S.C.DHARMADHIKARI, J. JUDGEMENT RESERVED :19.12.2006 JUDGEMENT PRONOUNCED: 8.02.2007.

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ORAL JUDGMENT :

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1.By this application, the petitioner challenges
an order dated 22.9.2006 passed in Misc.Application
No. 237 of 2006 in NDPS Spl.Case No. 97 of 2001.

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2.It is not in dispute that by this order the
application preferred by the petitioner has been

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rejected.

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3.A copy of that application is at page 317 of
this Revision paper book.

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4. The brief facts leading to this application
(Misc.Application No. 236 of 2006) being filed by
the applicant, are that the applicant is Accused
No.2 in the NDPS Spl.Case No.97 of 2001. The NDPS
case arises out of a complaint dated 2.8.2001 filed
by the respondents in the Special Court. The
petitioner states that on this complaint, the above
NDPS case has been registered.

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5.The case of the prosecution according to the
present petitioner is as summarised by him in his
application before the Court below. It proceeds
thus :-

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(i)That on 5.5.2001 the officers of the
Narcotics Control Bureau/Respondent, based on
prior information, arranged surveillance at an
ATM Centre, Hong Kong Bank, J.V.P.D. Scheme,

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Mumbai. One Nasir A. Shaikh/Accused No.1 was
spotted by the officers of the Respondent
alighting from the taxi and waiting on the
footpath opposite the ATM Centre. At about
1.40 hrs the Applicant arrived on the spot in
an Opel Astra Car registration no.
MH-02-N-4043 ("the Car") and parked near the
abovementioned ATM Centre. That the Accused
No.1 entered the Car and the applicant was
noticed near an ATM machine inserting an ATM
card into the slot. The officers of the
Respondent no.1 surrounded the Car and on
demand, were handed ‘goods’ by Accused No.1
later confirmed to be 11 plastic vials
containing 9 gms of cocaine.

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(ii)That as per the complaint, on
preliminary interrogation, Accused No.1
revealed that the seized 9 gms of cocaine was
out of 15 gms procured from one Tony
Gomes/Accused No.3. However the Seizure
panchanama dt. 5.5.2001 and the NCB report to
Head Office, Delhi dt. 5.5.2001 annexed with

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the complaint, reveal that during the
abovementioned preliminary interrogation
Accused No.1 had further specified that he had
come to the spot to deliver 1 gm cocaine to
the Applicant.

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(iii)That as per the complaint, the
statement of Applicant was recorded at the
office of the Respondent u/s 67 NDPS on
05.05.2001 wherein, the Applicant stated that
he had telephoned Accused no.1 on the evening
of 4.5.2001 and asked for 1 gm of cocaine to
be brought to HSBC at night and that he
normally paid Accused No.1 Rs.3500/- for one
gram. The Applicant also stated that he had
met Accused No.1 at a bar/pub about 4 months
ago and began using cocaine only 4 months ago
solely for personal consumption and did not
indulge with anyone else. He further stated
that over the 4 months, he procured 1 gm of
cocaine on 4-5 occasions solely for personal
use and that the 1 gm would last over 2-3
days. The Applicant also stated that he began

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consumption of cocaine due to occupational
stress which he faced during his shooting of
films, as often the work extended for about
14-16 years.

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(iv)That similarly, as per the complaint,
the Accused no.1 in his statement u/s 67 of
the NDPS Act recorded on 5.5.2001, stated that
while in the car with the Applicant, it was
agreed that he would give the Applicant 1 gm
of cocaine out of the 9 gms in his possession.
He further stated that the rest of the 8 gm
was for his personal consumption and selling
to other persons. He stated that he was to
sell 1 gm of cocaine to the Accused @
Rs.3500/- per gram and that the Accused on
various earlier occasions had purchased 1 gm
from him on each occasion @ Rs.3,000/- per
gram. He also confirmed that he had purchased
a total of 15 gms from one Tony Hector
Gomes/Accused No.3 @ Rs.3,000/- and had
already consumed 6 gms of it.

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(v)That no other incriminating items or
articles were found during the spot search of
the Applicant or during the subsequent search
of the Applicant’s residence at Juhu on
6.5.2001.

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(vi)That on 05.05.2001 Accused No.3 was
intercepted and his statement was recorded
wherein he stated that he had supplied 15 gms
of cocaine to Accused No.1.

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(vii)That all accused were placed under
arrest on the basis of their statements.

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(viii)That aftercompletionof the
investigation the prosecution filed complaint
dated 02.08.2001 wherein Para 30 simply stated
that Accused No.1 was found in possession of
11 vials of 9 gms cocaine inside the Car;
that the Applicant attempted to purchase the
cocaine from Accused No.1 and that the seized
cocaine was brought by Accused No.1 for
selling to the Applicant. Para 31 of the

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complaint alleges that the Applicant had
therefore committed offences u/s 28 r/w
sections 21 and 8(c) of the NDPS. It is
submitted that in complete disregard to the
contents of the complaint itself and the
evidence on record, these crucial paragraphs
of the complaint, do not mention that the
extent of the Applicant’s involvement is 1 gm
of cocaine.

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(ix)ThattheApplicantfiled
Misc.Application No.78 of 2006 in the Hon’ble
Special Court praying for amendment of the
complaint, to specify the quantity involved in
the allegation against him in order that he
could prepare an appropriate legal defence
within the context of the provisions of NDPS
Act as amended by Act 9 of 2001 ("the 2001
Act"). The 2001 Act with its stated objective
of imposing severe punishments for drug
traffickers and adopting a reformative
approach towards addicts, had rationalised the
sentence structure on the basis of small,

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non-commerical and commercial quantities.
(For cocaine: 2 gms, 3-100 gms and above 100
gms respectively as per Government
Notification S.O.1055(E) dt.19.10.2001).

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6.It is not in dispute that the applicant

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applied for bail in NDPS Special Case. That Bail
Application was numbered as Bail Application No.44
of 2001. On 10.5.2001 the NDPS Special Judge
granted bail to the applicant.

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7.Thereafter,theapplicantfiled

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Misc.Application No.78 of 2006 praying for amendment
to the complaint to specify the quantity involved
against him. According to him, this was necessary
in order to enable him to prepare appropriate legal
defence. His contention was that the defence would
be prepared bearing in mind the amendment to the
NDPS Act in 2001. This application was rejected by
NDPS Special Judge.

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8. Misc.Application No. 237 of 2006 which led to

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the impugned order being passed was filed on the
basis that the prosecution itself alleges that the
applicant has taken delivery of 1 gm of cocaine in
one plastic vial. A telephone conversation between
the applicant and the Accused No.1 is referred to in
this behalf. Even the statement of the applicant
recorded under Section 67 of the NDPS Act indicates
that a rate of Rs.3500/- per gram was fixed for this
one gm of cocaine. The applicant proceeded to
withdraw money from the ATM machine by inserting his
card. The applicant was to withdraw a sum of
Rs.4,000/- from his ATM. Thus, out of 9 gms of
cocaine in 11 vials, Original Accused no.1 was to
deliver only 1 gram to the applicant and balance was
to be either consumed by Original Accused No.1 or
sold to persons with whom he had dealings. The
argument therefore is that the applicant is involved
in the crime only to the extent of procuring or
attempting to procure 1 gm of cocaine which is a
small quantity. In such circumstances, Section
64A of NDPS Act was attracted.

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9.heapplication wasopposed by the

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prosecution/Narcotic Control Bureau. In its reply
it contended that the application preferred by the
applicant is not maintainable. On earlier occasion
under the garb of applying for amendment of the
complaint, similar relief was claimed by the
applicant but that was not granted by the court.
The present application also claims identical relief
and therefore is liable to be rejected on this
ground alone. It was then contended that " when the
applicant was apprehended along with co-acused No.1
and when seizure panchanama was drawn at the spot on
5.5.2001, strangely not a single word was uttered by
the applicant before the officers that he had come
to buy one gram of cocaine only or that he was an
addict or that he had used his ATM card to withdraw
the amount to make payment for one gram of cocaine
only. Thus, according to prosecution conduct of
applicant itself is quite doubtful, and now the
applicant is trying to make out some defence,
however,it has no basis. By referring to the
documents on record, Ld APP pointed out various
contents from the complaint, statement of
co-accused, applicant and other documents filed and

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had submitted that from these documents it cannot be
said that applicant is involved in a case involving
only one gram of cocaine. It is also contended that
there is nothing on record to establish that
applicant was an addict or he has dependence on the
narcotic drug i.e. cocaine which is a condition
precedent for claiming immunity by accused u/s 64A
of the Act, and therefore prayed that as the basic
requirements of such application are not fulfilled,
the application is liable to be rejected.

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10. This application was also heard by the same
learned Judge and by the impugned order he held that
it is not correct that the applicant is involved in
the case only to the extent indicated by him. On
the other hand, there is enough material to hold
that nine gms of cocaine came to be recovered and
seized under the panchanama from the spot in the
presence of the applicant and accused No.1. In the
absence of evidence being led, it would not be
proper to arrive at a conclusion that the applicant
is involved in a seizure of small quantity of
contraband drug. In other words, his involvement in

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the crime is not only to the extent of small
quantity. The learned Judge also relied upon his
observations made while rejecting Misc. Application
No. 78 of 2006 filed by this very applicant. He
has also relied upon the documents filed with the
complaint, seizure panchanama, statement of
co-accused so also that of the applicant and
contents of Remand Application. He concluded that
prima-facie the involvement of the applicant is not
only to the extent of possession of 1 gm of cocaine.

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Infact, the applicant did not disclose to the
co-accused that he was going to purchase only one gm
of cocaine from him. The learned Judge has relied
upon the statement of co-accused in this behalf. He
stated that it is the version of the applicant that
he came to the spot only to collect one gm of
cocaine from accused No.1 but this version can only
be tested when evidence is led at the trial. All
materials which are produced cannot be relied
straight away and that is how the application was
rejected. The Learned Judge’s observations in
paragraph 8 and 9 are clear.

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11.It is thereafter the learned Judge discusses
the arguments based on applicability of Section 64A
of the NDPS Act.

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12.Learned Judge concludes that no case is made
out for applying the above invoked provision because
the applicant would have to establish that he is an
"addict". That observation is made in para 11 of
the impugned order. It is this conclusion of the
Learned Judge which is subject matter of challenge
before me.

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13.Mr.Tulsi, learned Senior Counsel appearing for
the applicant, submits that, the judgment and order
of the court below is patently erroneous and
unsustainable in law and perverse. He submits that
if the view taken by the learned Judge is sustained,
it would result in manifest injustice to not only
the applicant but all accused who are similarly
placed like him. He submits that the prosecution
all throughout has alleged that the applicant had
come at the site only to collect 1 gm of cocaine.
Therefore, it is not proper to urge that the

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recovery from the applicant is in doubt and at this
stage it is improper to hold that the applicant was
not involved in the crime only to the extent of 1 gm
of cocaine. According to Mr.Tulsi, this conclusion
by the Learned Judge is contrary to the complaint of
the Narcotics Control Bureau. Further, Mr.Tulsi
urges that the rejection of the earlier application
praying for amendment to the complaint is of no
consequence because that is something unrelated to
the relief of immunity from prosecution.

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14.Mr.Tulsi, has firstly laid emphasis on
statement of Nasir Abdul Karim Shaikh in which he

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has stated that on 5.5.2001 at about 01.40 a.m. he
was standing at ATM centre of HSBC to meet one of
his clients namely the applicant herein. He has
stated that he came near the ATM centre after a
telephone conversation with the applicant and he has
given the mobile number of the applicant also.

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15. Thereafter in the statement it is stated that
the applicant was to receive 1 gm of cocaine out of
9 gms of cocaine which was in Accused No.1’s

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possession. Mr.Tulsi, invites my attention to the
Arrest Memo of Nasir Abdul Karim Shaikh (accused
no.1) wherein it is stated that the accused No.1 was
arrested for his involvement in the procurement,
possession, transportation and attempted sale of 9
gms of cocaine and narcotic drug seized in the ATM
counter of HSBC at Juhu. Mr.Tulsi, has taken me
through other documents to support his submission
that the prosecution case is clear and there is no
question of the applicant being involved in
procurement, possession, transportation of 9 gms of
cocaine. Mr.Tulsi, has invited my attention to
Section 64-A of the NDPS Act. He submits that in
the application preferred by the applicant he had
disclosed that he is a film actor and as a film
actor he is busy with several assignments which
require him to stay out of Mumbai and away from his
family. There is continuous stress and pressure of
work and he has to deliver his best to stay in the
competition and market. By this the applicant is
stressed and for relieving of the stress he consumed
drugs. He had got addicted to the same. In such
circumstances, he was justified in relying upon

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Section 64-A of the NDPS Act and seeking immunity
from prosecution. Mr.Tulsi, in support of his
submissions has relied upon a judgment of the
Supreme court reported in 2005(3) SCC 551 Pratap
Singh vs. Jarkhand and anr. He has emphasized the
fact that Section 64-A incorporates a remedial
measure. It is required to be construed liberally.
Further, interpretation of statute depends upon the
text and the context thereof and having regard to
the object with which the same was made.

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16.Mr.Tulsi, has invited my attention to the
system prevalent in countries abroad for treatment
of drug addicts. He has invited my attention to
some judgments and order rendered by courts abroad
while dealing with accused like the applicant. For
all these reasons he submits that the application be
allowed.

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17.M.Kantharia appears for respondent no.1,
Narcotic Control Bureau. She has invited my
attention to the affidavit of the Investigating
Officer of Narcotic Control Bureau and has submitted

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that the seized cocaine was brought by the accused
no.1 at the instance of accused no.2 for sale to
accused no.2 and thereby accused no.1 and 2 have
committed an offence punishable under the NDPS Act.

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18.She submits that Section 64-A cannot apply to
the facts and circumstances of the present case.
She submits that any addict is charged with an
offence punishable under Section 27 or with offence
involving small quantity of narcotic drug or
psychotropic substance and who voluntary seeks to
undergo medical treatment for de-addiction from a
hospital or an institution recognised by a
government or a legal authority only can avail of
the immunity from the prosecution. Further, he is
required to undergo treatment. She submits that the
term ‘addict’ is defined under Section 2(i) of the
NDPS Act. She submits that there is no material on
record to substantiate the contention of he

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applicant about his dependence on cocaine. Except
for his statement that he began using cocaine four
months ago solely for his personal consumption,
there is nothing to substantiate the claim of the

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Immunity. The learned Judge was right in denying
relief to the applicant on the basis that Section
64(A) cannot apply to this case. She submits that
the entire attempt on the part of the applicant is
to delay the trial. He is avoiding facing trial for
obvious reasons. This is not a person who is used
to consuming drugs but a man who has indulged in
procuring, transporting and possessing the same in
huge quantity. He is actively associated with the
accused No.1 and both are guilty of the offences
alleged against them. Hence, no question arises of
any intereference with the impugned order. The
Revision Application be therefore dismissed.

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19.For properly appreciating the rival contention
it is necessary to refer to the prosecution case.

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20.It is already set out in some details by me in
the foregoing paras. At the present stage, it
cannot be said that the complaint read as a whole
discloses limited role of the petitioner accused as
urged by Mr.Tulsi. A copy of the complaint is
annexed as Annexure B collectively to the present

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Revision Application. NDPS Special Case No. 97 of
2001 is on the basis that the prosecution had kept a
surveillance around the ATM centre of HSBC bank at
Juhu. The accused no.1 came there and alighted from
a Taxi. He was waiting on the footpath opposite ATM
centre. An Opel Astra car, more particularly
described in the complaint came and stopped near the
ATM centre. Accused No.1 Nasir, went near the car
and entered the same. He sat next to the driver.
The driver of the car accused no.2 came to the ATM
centre and punched his card. It is at that stage
that the officers entered the ATM centre and the
car. The accused no.1 handed over the goods which
are Drugs. The goods are nothing but contraband
namely 11 vials of cocaine powder. Thereafter there
is recovery of mobile phones and driving license.

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21.The complait refers to the statement and
confessions of Nasir so also that of the present
applicant. However, the prosecution, on the basis
of the material collected, alleges that accused no.1
and 3 alongwith other known and unknown persons have
entered into conspiracy to commit an offence under

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the NDPS Act with an intention to possess, sale,
purchase and transport cocaine, a Narcotic drug in
contravention of the provisions under the Act and
thus committed offences under Section 29 read with
8(c) and 21 of the NDPS Act, 1985. The applicant
accused is charged with commission of offence
punishable under Section 28 read with Section 21 and
8(c) of NDPS Act. The learned Judge in his earlier
order has referred to the complaint, the seizure
panchanama and has observed that the total quantity
of contraband involved in the case is 9 gms out of
15 gms procured by the co-accused from accused no.3
as stated by him in his confessional statement.
Thus, 9 gms of cocaine came to be recovered and
seized under the panchanama from the spot in the
presence of the applicant and accused no.1. At this
stage, therefore, the learned Judge was right in
holding that it is difficult or rather not possible
to arrive at a definite conclusion that the
involvement of the applicant is only to the extent
of a small quantity. That is something which will
have to be established by evidence at the stage of
trial. In the earlier order passed by the Special

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Judge rejecting the request for amendment of the
complaint, he has referred to the submission of the
applicant with regard to the applicability of
amended provisions of NDPS Act. The argument on
behalf of the applicant was that in the amended Act,
three categories were either introduced or spelt
out, namely, small quantity, non-commercial quantity
and commercial quantity. The argument was that
punishment for small quantity is not the same for
the offence under Section 27 of the NDPS Act. In
other words, the argument was identical. The
applicant urged that his involvement is only to the
extent of 1 gm of cocaine which is a small quantity.

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22.The learned Judge has taken note of this
argument in his order on Misc.Application No. 78 of
2006 and held that from the materials produced it is
not possible to conclude that involvement of the
applicant is only to the extent of 1 gm of cocaine.

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23.In this behalf a reference can usefully be
made to para 10 and 11 of the order dated 5.6.2006
of the Learned Special Judge.

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24.In my view the order dated 5.6.2006 read as a
whole takes into account both grievances of the
applicant. His first grievance about his
involvement and depending upon the involvement,
immunity from prosecution are matters fully covered
by the earlier order.

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25.Mr. Tulsi, could not disput this aspect
before me. He also could not dispute the fact that
earlier order is not challenged by the applicant in
the present application. With his assistance I have
perused both orders. It is pertinent to note that
the submission of the learned advocate for the

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applicant was that the complaint be directed to be
amended so that there is no ambiguity and all
defences including invoking of Section 64-A of NDPS
Act could be raised. The request has been turned
down and while doing so, the learned Judge has
observed in para 5 of his order delivered on
5.6.2006 that for claiming immunity from

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prosecution, the applicant would have to establish
that either he is involved in an offence punishable

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under Section 27 of the Act or involving small
quantity of narcotic drug or psychotropic substance
so also comply with further requirements of Section
64A of the NDPS Act. He would also be required to
establish that he was an ‘addict’ as defined under
Section 2(i) of the NDPS Act. After observing that
the applicant has not established that his
involvement is to the extent of small quantity, the
learned Judge has not permitted him to invoke
Section 64-A of the NDPS Act.

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26.It is the same request which was reiterated by
filing a fresh application and to my mind, the
Learned Judge has not committed any error in not
taking cognisance of the same vide the impugned
order. Assuming that the involvement of the
Applicant is to the extent of small quantity, it is
necessary to ascertain whether he fulfils the
pre-requisites for claiming Immunity. In this
behalf a useful reference can be made to Section
64-A which reads thus :-

¶97

"Section 64-A. Immunity from prosecution to
addicts volunteering for treatment.-Any
addict, who is charged with an offence

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punishable under Section 27 or with offence
involving small quantity of narcotic drugs or
psychotropic substances, who voluntarily seeks
to undergo medical treatment for de-addiction
from a hospital and undergoes such treatment
shall not be liable to prosecution under
Section 27 or under any other section for
offences involving small quantity of narcotic
drugs or psychotropic substances:

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Provided that the said immunity from
prosecution may be withdrawn if the
addict does not undergo the complete
treatment for de-addiction.]

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27.A bare perusal of the same would demonstrate
that the same has been inserted to ensure that the

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addicts who are charged with small quantity offences
and volunteering for treatment get the benefit of
immunity from prosecution. Upon a plain reading of
the provision it is apparent that the requirement
herein is that the person applying for immunity must
be an ‘addict’. An ‘addict’ has been defined in the
NDPS Act to mean a person who is dependent on any
narcotic drug or phsychotropic substance. The word
‘dependent on any narcotic drug or psychotropic
substance’ is crucial in the definition. The
element of dependability on the narcotic drug or
pschotropic substance is something which the
legislature thought it fit to take care of by

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granting immunity. The long title to Section 64-A
would indicate that the intent is to grant immunity
to addict who is charged with offences as enumerated
in Section 64-A and who voluntarily seeks to undergo
medical treatment for de-addiction from a hospital
and undergoes such treatment. The immunity is not
absolute and is capable of being withdrawn.
Therefore, unless and until immunity is claimed on
the basis that all prerequisites stipulated by
Section 64-A are fulfilled their cannot be any
question of immunity from prosecution. In 2004 (3)
Kerala Law Times Pg.270 (Shaji vs. Kerala State)
Bail Application Nos.1660, 1736 and 1787 of 2003,
similar pleas were rejected in the following words
:-

¶105

". Whether a person is entitled to the
immunity provided in Section 64A of the Act,
being a person undergoing treatment for
de-addiction, is a matter to be specifically
urged and proved by production of sufficient
evidence by the person concerned. In this
case, no such pleading or evidence is brought

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to our notice. Moreover, such immunity
applies in cases involving possession of small
quantity. In this case, we have already found
that the quantity involved is larger than
small quantity. Hence, Section 64A does not
have any application in this case. "

¶108

28.There is substance in the contention of
Ms.Kantharia, that there is no material on record,
except the bald and bare statement of the applicant,
to hold that the applicant is an addict and is
involved in the offence to the extent of only a
small quantity. Mr.Tulsi relied upon several
Decisions rendered and delivered by courts abroad
but on a perusal of the same it appears that
protection and Immunity was given to Addicts.

¶109

29.It is in these circumstances, that I do not
feel that it is necessary to enter into any larger
controversy and the ambit and scope of the provision
empowering the court to grant immunity, assuming
that the court can grant the same at this stage. It

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is extremely doubtful as to whether such an immunity
can be claimed straightaway and when necessary
materials are lacking. In my view, the impugned
order does not suffer from any error apparent or
perversity so as to call for interference in my
revisional jurisdiction. The impugned order has
also not resulted in manifest injustice in as much
as upon proper particulars being furnished and
relevant materials produced the Accused can be
permitted to invoke Section 64-A of the NDPS Act.
The learned Judge was right in rejecting the
contentions of by the applicant. More so, when they
were already raised earlier before him and rejected.

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30.In the result, there is no merit in this
Criminal Revision Application and it is dismissed.

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*************

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sd/-

Fardeen Feroz Khan v. Union of India and Anr.

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Fardeen Feroz Khan v. Union of India and Anr.

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Milind Vaman Khanolkar and Ors. Vs State of Maharashtra and Ors.

Ashok Govind Malushte and Anr. Vs Arun Manaji Kale