Allowed

Mr. Anjay Kumar Singh v. State of Karnataka

Karnataka HC17 Nov 2023WP/12859/2022

Case brief

AI extract

What is this about?

This High Court of Karnataka allowed a writ petition to quash criminal proceedings against the petitioner. The court held that the petitioner's confession by a co-accused, recorded after the arrest and seizure of drugs, is inadmissible under Sections 25 and 26 of the Evidence Act and cannot sustain the trial alone.

What did the court decide?

The impugned proceedings in Spl.CC No.309/2020, insofar as they relate to the petitioner, stand quashed.

Mr. Anjay Kumar Singh Vs State of Karnataka — Narcotics (NDPS) | Karnataka HC (2023)

¶1

NC: 2023:KHC:41226 WP No. 12859 of 2022

¶2

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17^TH DAY OF NOVEMBER, 2023 BEFORE

¶4

THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR

¶5

WRIT PETITION NO. 12859 OF 2022 (GM-RES)

¶6

BETWEEN:

¶7

MR. ANJAY KUMAR SINGH S/O THON SINGH, AGED ABOUT 52 YEARS R/AT NO 404, 'A' BLOCK SYMPHONY APARTMENT, ANEKAL CHANDAPURA ROAD, BYAGADADENAHALLI VILLAGE ANEKAL TALUK-562 106 NATIVE OF MASAD VILLAGE AND POST BHOJPUR DISTRICT, BIHAR STATE-854 333.

¶8

…PETITIONER

¶9

(BY SRI. HASHMATH PASHA, ADVOCATE FOR SRI. KARIAPPA N A, ADVOCATE)

¶10

AND:

¶11

STATE OF KARNATAKA

¶12

Digitally signed by B K MAHENDRAKUMAR Location: HIGH COURT OF KARNATAKA

¶13

BY SURYANAGAR POLICE STATION ANEKAL SUB DIVISION BANGALORE DISTRICT - 562 106.

¶14

POLICE INSPECTOR AND INVESTIGATION OFFICER HEBBAGODI POLICE STATION ANEKAL TALUK 560 099

¶15

BOTH THE RESPONDENTS ARE REP. BY LEARNED GOVERNMENT ADVOCATE BANGALORE.

¶16

…RESPONDENTS

¶17

(BY SRI. VENKATSATYANARAYAN A, HCGP)

¶18

THIS WP IS FILED UNDER ARTICES 226 AND 227 OF THE CONSTITUTION OF INDIA AND UNDER SECTION 482 OF THE

¶19

2 - NC: 2023:KHC:41226 WP No. 12859 of 2022

¶20

CODE OF CRIMINAL PROCEDURE PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN SPL.C.C.NO.309/2020 PENDING ON THE FILE OF HONBLE XXXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE FOR NDPS CASES, BANGALORE CITY AS PER ANNEXURE-B INCLUDING ORDER OF COGNIZANCE WHICH IS ARISING OUT OF CRIME NO.326/2019 OF SURYANAGAR POLICE STATION, ANEKAL SUB-DIVISION, BANGALORE DISTRICT, FOR OFFENCES U/S 332, 353, 307 R/W SECTION 149 OF IPC AND U/S 20(B) OF NDPS ACT AS PER ANNEXURE-A (FIR IN CRIME NO.329/2019 AND COMPLAINT AND ANNEXURE-C (ENTIRE CHARGESHEET) AS AN ABUSE OF PROCESS OF LAW AND QUASH THE ORDER DTD 1.1.2021 PASSED IN THE ABOVE PROCEEDINGS IN ANNEXURE-B AS ILLEGAL AND ETC.

¶21

THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

¶22

ORDER

¶23

The petitioner - accused No.2 has been charge-sheeted for the offences punishable under Sections 332, 353, 307 of IPC and Section 20(C) of the Narcotic Drugs & Psychotropic Substances Act, 1985.

¶24

The case of the prosecution is that, on 23.9.2019 at about 3.00 p.m. the Police Inspector of the respondent No.1 - police station received a credible information that one person was transporting ganja in Scorpio car and he was proceeding on Shettihalli - Marasuru Road towards Medivala, Bangalore. On receipt of the said credible information, a permission is said to have been obtained from the Dy.SP, Anekal and thereafter Scorpio car was intercepted and the accused No.1 - driver of the car was found in possession of thirteen bags of ganja weighing 341 kgs. and the same was seized under the panchanama. After apprehending him, and on interrogation,

¶25

¶26

NC: 2023:KHC:41226 WP No. 12859 of 2022

¶27

he is alleged to have stated that he procured the ganja from Matti Bhai @ Shekhar of Orissa, who is none other than the accused No.4.

¶28

Sri Hashmath Pasha, learned Senior Counsel for the petitioner submits that the confession statement of co-accused is inadmissible in law as stated under Sections 25 and 26 of Indian Evidence Act. He further submits that the decision relied upon by the learned High Court Government Pleader is not applicable, since the Hon'ble Supreme Court in the case of Tofan Singh -vs- State of Tamil Nadu (2021) 4 SCC 1 was dealing with the statement recorded preceding search and seizure by the officer under Section 42 of NDPS Act.

¶29

The learned High Court Government Pleader for the respondents submits that the advantage of the decision in the case of Tofan Singh -vs- State of Tamil Nadu - (2021) 4 SCC 1 cannot be taken in the proceeding under Section 482 of Cr.PC and can be taken only at the time of arguing the regular bail application or at the time of final hearing after conclusion of the trial. In support, he places reliance on the decision of the Hon'ble Supreme Court in the case of the State of Haryana -vsSamarth Kumar (2022 LiveLaw (SC) 622.

¶30

Considered the submissions of the learned counsel for the parties.

¶31

Section 67 of the NDPS Act deals with the power of an officer referred to in Section 42 of the Act to examine any

¶32

4 - NC: 2023:KHC:41226 WP No. 12859 of 2022

¶33

person acquainted with the facts and circumstances of the case.

¶34

The Hon'ble Supreme Court in the case of Tofan Singh (supra) while dealing with Section 67 of the Act at paras66 and 68 has held as follows:

¶35

"66. This becomes even clearer when Section 52(3) of the NDPS Act is read. Under Section 52(3), every person arrested and article seized under Sections 41 to 44 shall be forwarded without unnecessary delay either to the officer in charge of the nearest police station, who must then proceed to “investigate” the case given to him, or to the officer empowered under Section 53 of the NDPS Act, which officer then “investigates” the case in order to find out whether an offence has been committed under the Act. It is clear, therefore, that Section 67 is at an antecedent stage to the “investigation”, which occurs after the officer concerned under Section 42 has “reason to believe”, upon information gathered in an enquiry made in that behalf, that an offence has been committed.

¶36

68. The consequence of accepting Shri Lekhi's argument flies in the face of the fundamental rights contained in Articles 20(3) and 21, as well as the scheme of the NDPS Act, together with the safeguards that have been set out by us hereinabove. First and foremost, even according to Shri Lekhi, a police officer, properly so called, may be authorised to call for information, etc. under Section 67, as he is an officer referred to in Section 42(1). Yet, while “investigating” an offence under the NDPS Act i.e. subsequent to the collection of information, etc. under Section 67, the same police officer will be bound by Sections 160-164 CrPC, together with all the safeguards mentioned therein — firstly, that the person examined shall be bound to answer truly all questions relating to such case put to

¶37

5 - NC: 2023:KHC:41226 WP No. 12859 of 2022

¶38

him, other than questions which would tend to incriminate him; secondly, the police officer is to reduce this statement into writing and maintain a separate and true record of this statement; thirdly, the statement made may be recorded by audio-video electronic means to ensure its genuineness; and fourthly, a statement made by a woman can only be made to a woman police officer or any woman officer. Even after all these safeguards are met, no such statement can be used at any inquiry or trial, except for the purpose of contradicting such a witness in cross-examination."

¶39

The understanding derived from the reading of Section 67 of the NDPS Act and also the legal principles established by the Hon'ble Supreme Court in the case of Tofan Singh (supra) is that, the examination of Section 67(c) of the NDPS Act is only for the purpose of gathering information so as to satisfy that there is reason to believe that the offence has been committed. In the instant case, the statement of the co-accused i.e. accused No.1 was recorded after search and seizure. Therefore, the confession statement of accused No.1 recorded was under Sections 25 and 26 of the Indian Evidence Act, and not under Section 67(c) of NDPS Act.

¶40

The Hon’ble Supreme Court in the case of State of Haryana -vs- Samarth Kumar (2022 LiveLaw (SC) 622) has held that the accused may be able to take advantage of the decision in the case of Tofan Singh (supra) perhaps at the time of arguing regular bail application or at the time of final hearing after conclusion of the trial.

¶41

¶42

NC: 2023:KHC:41226 WP No. 12859 of 2022

¶43

The Hon'ble Supreme Court in the case of Tofan Singh (supra) at para-158.1 has held as follows:

¶44

"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."

¶45

The Hon'ble Supreme Court has categorically held that the statement recorded under Section 67 of the NDPS Act cannot be used as confessional statement in the trial for the offence punishable under the NDPS Act and any confessional statement made to the police officer would be barred under the provision of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act. In the instant case, the accused No.1, who was apprehended after search and seizure is alleged to have confessed that he procured ganja from the petitioner herein, and the statement recorded was not under Section 67(c) . Any confession statement made to the police is inadmissible under Section 25 of the Evidence Act in the absence of any corroborative material to substantiate that the petitioner supplied ganja to the accused No.1. Therefore, the continuation of the criminal proceedings against the petitioner only on the basis of a confessional statement of the co-accused will be an abuse of the process of law. Accordingly, I pass the following:

¶46

¶47

NC: 2023:KHC:41226 WP No. 12859 of 2022

¶48

ORDER

¶49

i) Writ petition is allowed.

¶50

ii) The impugned proceedings in Spl.CC No.309/2020 pending on the file of the learned XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS case, Bangalore City, insofar as it relates to the petitioner herein stands quashed.

¶51

Sd/JUDGE

¶52

BKM

Mr. Anjay Kumar Singh v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Mr. Anjay Kumar Singh v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

N Pious Arun Kumar Vs the State

P. Vijay Babu Vs State by Kengeri P. S.

Sri Dhananjaygowda Vs State by

Sri Ravindranath B.L Vs Sri.H R Puttaboyi

Sri. L.K. Shivananda Vs the State by Deputy Superintendent of Police

Karthik H N Vs State of Karnataka