MR. SHIV SWAROOP v. THE STATE OF KARNATAKA

(BY SRI. V. LAKSHMINARAYANA, SENIOR COUNSEL FOR SRI. PRATHAM N., ADVOCATE) …PETITIONER AND:

#1. THE STATE OF KARNATAKA REPRESENTED BY STATION HOUSE OFFICER J.C. NAGAR POLICE STATION 2 H4v + 6 FR, NANDI DURGA ROAD JAYAMAHAL, BENGALURU-560 046 KARNATAKA.

#2. K MAHENDRAKUMAR Location: HIGH COURT OF KARNATAKA THE STATE OF KARNATAKA REPRESENTED BY STATION HOUSE OFFICER SANJAY NAGAR POLICE STATION DR. RAJGOPAL ROAD BANGALORE-560 056. (BY SRI. VIJAYAKUMAR MAJAGE, SRP-2 A/W SRI. VENKATASATYANARAYANA A., HCGP FOR RESPONDENT/STATE) …RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA R/W SECTION 482 OF CODE OF CRIMINAL PROCEDURE, PRAYING TO QUASH THE UNDERLYING CHARGE SHEET DATED 09/11/2022 AND FIR DATED 20/06/2021 (ANNEXURE-B & C) IN CRIME NO.93/2021 REGISTERED AT J.C. NAGAR POLICE STATION NOW - 2 - NC: 2024:KHC:9404 WP No. 11823 of 2023 BEFORE SANJAYANAGAR POLICE STATION FILED UNDER SECTIONS 20(B) AND 20(C) OF THE NDPS (NARCOTIC DRUGS AND PSYCHOTROPHIC SUBSTANCES) ACT PENDING BEFORE THE HON'BLE XXXIII ACC & SJ & SPL. JUDGE, BANGALORE AND SUBSEQUENT PROCEEDINGS EMANCIPATING OUT OF THE CRIME NO.93/2021 AGAINST THE PETITIONER, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE. THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER The petitioner, accused No. 4, stands charged under Sections 20(b) and 20(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

#2. According to the prosecution's case, on 20.06.2021, credible information led to a raid where three individuals, accused Nos.1 to 3, were caught with 950 grams of ganja. They allegedly confessed to procuring the substance from accused Nos.4 to 6, who purportedly bought it from a Dark website. Subsequently, accused Nos.4 to 6, including the petitioner, were apprehended, and their mobile phones, laptops, and vehicle were seized. Data retrieved the petitioner's phone allegedly indicated involvement in purchasing ganja from the Dark website.

#3. Sri. V. Lakshminarayana, learned Senior Counsel for the petitioner, contends retrieved data does not conclusively prove the petitioner's purchase of ganja. Without physical recovery from the petitioner, prosecuting him only on the basis of a confession statement of co accused which inadmissible in law would constitute an abuse of legal process. In support, reliance is placed on the decision of the Apex Court in the case of Tofan Singh vs. State of Tamil Nadu (2021) 4 SCC 1. - 3 - NC: 2024:KHC:9404 WP No. 11823 of 2023

#4. Sri Vijayakumar Majage, learned SPP-II respondent-State, counters that forensic analysis of the petitioner's phone confirmed ganja purchase via a Dark website using cryptocurrency. He argues that coupled with co-accused statements, this establishes the petitioner's involvement, and various contentions taken by the Petitioner can be considered at the time of trial.

#5. Initially, accused Nos.1 to 3 were apprehended based on the information received. Their confession implicated accused Nos.4 to 6 in procuring ganja from the Dark website. Subsequently, the petitioner was arrested, and his electronic devices were seized for forensic examination.

#6. The forensic report, part of the charge sheet, revealed no incriminating data in the cloud or any associated social media accounts on the petitioner's phone. It indicated visits to the Dark website but did not conclusively prove ganja procurement. Lack of corroborating evidence renders reliance on co-accused confessions, inadmissible under Section 25 of the Indian Evidence Act, insufficient for prosecution.

#7. The Hon'ble Supreme Court in the case of Tofan Singh - vs- State of Tamil Nadu - (2021) 4 SCC 1 at para-158.1 has held as follows: "158.1. That the officers who are vested 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 - 4 - NC: 2024:KHC:9404 WP No. 11823 of 2023 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act."

#8. The Hon’ble Supreme Court in the case of Tofan Singh -vs- State of Tamil Nadu reported in (2013) 16 SCC 31, has held that, any confessional statement made to officers empowered under Section 53 cannot be taken into account in order to convict an accused, except to the extent found "relevant" under Section 53A, and when corroborated in accordance with law.

#9. Therefore, in the absence of any corroborative material to substantiate the allegation against the Petitioner, continuation of the criminal proceedings only on the basis of the confession statement of the co-accused will be an abuse of the process of law.

#10. Accordingly, I pass the following: ORDER i) The writ petition is allowed; ii) The impugned proceedings in Spl. Case No.463/2023 on the file of the Additional City Civil and Sessions Judge, at Bengaluru insofar it relates to the petitioner-accused No.4 stands quashed. Sd/- JUDGE RKA/HR