Allowed

Virendra Khanna v. State of Karnataka

Karnataka HC4 Jan 2021CRL.P/6847/2020

Case brief

AI extract

What is this about?

Crim. Pet. under Section 439 Cr.P.C. for bail in NDPS and Foreigners Act offences. Court held that registering two FIRs for the same offence violated double jeopardy principles. Bail granted subject to bond, sureties, and specific conditions including cooperation with investigation.

What did the court decide?

Petitioner allowed bail on bond of Rs. 2,00,000 with two sureties for the like sum, subject to conditions of non-interference with witnesses, no future offences, appearing for investigation, monthly a

Virendra Khanna Vs State of Karnataka — Narcotics (NDPS) | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF JANUARY 2021

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BEFORE

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THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR

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CRIMINAL PETITION No. 6847/2020

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BETWEEN

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Virendra Khanna, S/o Mr. Sri Ram Khanna, Aged about 35 years, Flat No.301, Shamrok Apartments, No.10, Moyekville Road, Langford Town, Bengaluru – 560 054.

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…Petitioner

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(By Sri. Hasmath Pasha, Senior Advocate, for Sri Nasir Ali, Advocate)

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AND

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State of Karnataka by Banaswadi Police, Bengaluru – 560 043, Investigated by CCB Police, Bengaluru.

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…Respondent

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(By Sri.V.G.Tigadi, Spl. P.P.)

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This Criminal Petition is filed under Section 439 Cr.P.C praying to enlarge the petitioner on bail in Cr. No. 588/2018 of Banasawadi Police Station, Bengaluru City, for the offences punishable under sections 468, 471, 420 and 120(B) of IPC and sections 21(b), 21(c) and 22(c) of N.D.P.S Act and under section 14 of Foreigners Act, 1946.

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This Criminal Petition having been heard and reserved for orders on 22.12.2020, coming on for pronouncement this day through video conferencing at Dharwad Bench, the court pronounced the following:

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ORDER

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This is a petition under section 439 of Code of Criminal Procedure, the petitioner is accused No.5, in Crime No. 588/2018 registered by Banasawadi police. The events in the background of which the petitioner was arrested are:

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On 2.11.2018, the Police Inspector, Narcotic Control Bureau, N.T.Pet, Bengaluru, conducted raid on a house situated at Thomas Town, Bengaluru, and seized certain quantities of narcotic substances from the possession of three persons namely (1) Faith Chuks (2) Kante Henry and (3) Prateek Shetty, and a crime was registered against them in FIR No. 588/2018 for the offences under sections 21(c), 22(c) of NDPS Act and section 14 of Foreigners Act. Thereafter on 27.4.2019, charge sheet came to be filed against the said three accused, who are on bail now. At the foot of the charge

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sheet, a submission note was made by the Police Inspector who filed the charge sheet that further investigation under section 173(8) of Code of Criminal Procedure Code had been undertaken in order to collect additional evidence and obtain FSL report.

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On 3.9.2020, the police arrested another accused namely B.K.Ravishankar (A4) and interrogated him. He revealed the name of the petitioner stating that the latter was supplying ganja in the parties that he was arranging at various place in Bengaluru. On this information the petitioner was arrested and remanded to custody on 4.9.2020. Remand application dated 4.9.2020 shows that the petitioner was arrested in connection with Crime No. 588/2018.

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Basing the statement of B.K.Ravishankar, the Cotton Pet police registered another FIR i.e., 109/2020, against 12 accused initially for the offences punishable under the provisions of NDPS Act, and in this FIR, the petitioner is shown as accused No.3.

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I have heard the argument of Sri Hasmath Pasha,

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learned senior counsel appearing for the petitioner, and Sri V.G.Tigadi, the Special Public Prosecutor, who has also filed statement of objections.

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The contentions raised by Sri Hasmath Pasha are:

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FIR in Crime No. 588/2018 was registered on 2.11.2018 against three named accused and in connection with that FIR, charge sheet was filed on 27.4.2019. In the guise of further investigation under section 173(8) of Cr.P.C., about which there is a note in the charge sheet, the Assistant Commissioner of Police, K.C.Goutham, obtained information under section 67 of NDPS Act from B.K.Ravishankar and came to know that the petitioner was supplying drugs in the parties that he used to arrange in Bengaluru and thus he was made accused No.5 in FIR No. 588/2018. Accused No.4 is B.K.Ravishankar. For conducting further investigation, the investigating officer should obtain permission from the Magistrate, which is not forthcoming. Then, based on Ravishankar’s statement, a

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separate FIR, 109/2020 was registered at Cotton Pet Police Station for the offences punishable under sections 27(b), 27A, 29 and 21 of NDPS Act. Once a separate FIR was registered against the petitioner and some other accused, the petitioner should not have been arraigned as accused No.5 in FIR No. 588/2018. Now there are two cases against the petitioner for the same offences. Other than the statement of B.K.Ravishankar, there is no material which connects the petitioner with FIR No. 588/2018. If the police were to come to conclusion that Ravishankar’s statement made out a separate and distinct offence, it was not necessary to make the petitioner accused No.5 in FIR No. 588/2018 and arrest him. Or, having made him an accused in FIR No. 588/2018, he should not have been implicated in FIR 109/2020. The petitioner has been implicated in two cases for the same offences, and this is against section 300 of Cr.P.C and Article 20(2) of the Constitution of India.

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The other points raised by him are that after arresting the petitioner, no drug or psychotropic substance was seized from him; and a few gadgets seized from him did not disclose incriminatory materials. And already accused 1 to 3 are released on bail. Therefore the petitioner deserves to be released on bail.

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Sri V.G.Tigadi argued that there are materials indicating the petitioner’s involvement in the crime in respect of which FIR 588/2018 was registered, Ravishankar’s statement is in respect of offences that were committed after the year 2018. In the charge sheet filed pursuant to FIR 588/2018, it is clearly mentioned that further investigation has been reserved, and in fact the police inspector did apply for permission on 3.9.2020 for further investigation according to section 173(8) of Cr.P.C. He referred to permission letter issued by the court. Since implication of the petitioner in FIR 588/2018 is based on a source, other than the statement of Ravishankar, and which cannot be disclosed according to section 68 of NDPS

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Act, section 300 of Cr.P.C as also Article 20(2) of the Constitution are not applicable. He further argued that the petitioner is not cooperating with the investigating officer; he is not ready to disclose the passwords of his electronic gadgets, and his father too, as forthcoming from remand applications, asked him not to share the passwords. This being the conduct of the petitioner, he cannot be released on bail.

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Sri Hasmath Pasha has placed reliance on many rulings, of which reliance may be placed on one judgment of the Supreme Court in the case of Amitbhai Anilchandra Shah vs CBI and Another [(2013) 6 SCC

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348]. This will be referred to later. The other rulings, I think, are not necessary for deciding this bail application.

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As the material facts on record disclose, FIR 588/2018 was registered on 2.11.1988 against three named accused and charge sheet was also filed on 29.4.2019 against them only. The footnote made in the charge sheet actually states that further investigation was

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being continued (F ¥ÀæPÀgÀtzÀ°è PÀ®A 173(8) ¹.Dgï.¦.¹. jÃvÁå

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vÀ¤SÉAiÀÄ£ÀÄß ªÀÄÄAzÀÄªÀgÉ¸À¯ÁVzÉ) but, what actually appears is that

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till obtaining of information from B.K.Ravishankar on 3.9.2020, no further investigation had been undertaken. When charge sheet was filed, FSL report was not available; and awaiting FSL report, charge sheet was filed. Filing of charge sheet awaiting FSL report to be produced at a later stage does not fall within the ambit of further investigation, for the seized materials would have been forwarded to FSL during investigation. Therefore till 3.9.2020 there was no further investigation.

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When Ravishankar was examined by the Assistant Commissioner of Police on 3.9.2020, he revealed that the petitioner was organizing parties at various places in Bengaluru and supplying drugs there. Though Sri V.G.Tigadi argued that there are other materials to connect the petitioner with FIR No. 588/2018, the case diary that he has made available for reference does not indicate the existence of independent materials. It was a

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point of argument of Sri V.G.Tigadi that source cannot be disclosed. True, but what is required is disclosure of date of receipt of information. The dates are important. Because, if the police had independent source, it should be prior to 3.9.2020, which information is not forthcoming. If B.K.Ravishankar’s statement was the basis for arrest of the petitioner; and later, based on the very statement, another FIR 109/2020 was registered by Cotton Pet Police Station against him and eleven other accused, it should be for a distinct crime. The remand application made in FIR 588/2018 while seeking custody of the petitioner discloses events that are mentioned in FIR 109/2020. Therefore, as rightly argued by Sri Hasmath Pasha, there are two FIRs in respect of same events against the petitioner. In Amitbhai Anilchandra Shah (supra) , the Hon’ble Supreme Court has clearly held in para 58.5 of its judgment as extracted below : -

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“58.5. The first information report is a report which gives first information with regard to any offence. There cannot be second FIR in

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respect of the same offence/event because whenever any further information is received by the investigating agency, it is always in furtherance of the first FIR.”

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Though Sri Hasmath Pasha argued that no permission of the court was obtained before commencing further investigation, the case diary discloses permission of

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the court having been taken on 3.9.2020. Further investigation as envisaged in section 173(8) of Cr.P.C requires permission of the court; obtaining of permission is an implied requisite. Further investigation is not reinvestigation or a fresh investigation, the meaning of further investigation can be commonsensically understood. It is for the purpose of collection of additional evidence in connection with an offence which has already been investigated culminating into filing of charge sheet. Now if Ravishankar’s statement led to registration of a separate FIR, obviously, a distinct crime should have taken place. And in that event, the petitioner should not have been arraigned as an accused in connection with FIR

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No.588/2018 in the guise of further investigation. Therefore, argument of Sri Hasmath Pasha is acceptable.

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For the reasons stated in the above paragraph,

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inasmuch as the petitioner is shown as accused No.5, examined whether there exists materials sufficient enough for denying bail to him, the case diary only shows seizure of gadgets and a police uniform. It is not in dispute that the police did not seize any contraband substance from the petitioner; the recovery was from the possession of accused 1 to 3 on 2.11.2018. These three accused have been enlarged on bail. As according to prosecution B.K.Ravishankar’s statement being the origin for registration of FIR 109/2020 by the Cotton Pet Police, materials collected during investigation of that crime, i.e., FIR 109/2020, cannot be linked with FIR 588/2018. Another point that Sri V.G.Tigadi argued about noncooperation of the petitioner may not be a material point for consideration in view of reasons above mentioned.

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Therefore a case is made out for granting bail. Now the following order:-

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(a) Petition is allowed.

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(b) Petitioner shall be released on bail on obtaining from him a bond for Rs.2,00,000/- and two sureties for the likesum to the satisfaction of the trial court. He is also subjected to the following conditions : -

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(i) He shall not threaten the witnesses and tamper with evidence.

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(ii) He shall not get involved in any crime in future, registration of FIR at any place for any crime will be seriously considered for cancellation of bail.

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(iii) Till further investigation is completed against him, he shall appear before the investigating officer as and when his presence is necessary.

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(iv) He shall also mark his attendance once in a month, on a first Sunday in the first week of every calendar month till filing of supplementary charge sheet and if filed, till conclusion of trial.

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(v) He shall cooperate with I.O. for completing investigation. (vi) He shall furnish his telephone numbers, E-mail I.D to the trial court.

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Sd/JUDGE

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ckl

Virendra Khanna v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Virendra Khanna v. State of Karnataka

Case brief

What is this about?

What did the court decide?

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