- 1 - NC: 2025:KHC:9646 CRL.P No. 4554 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR CRIMINAL PETITION NO. 4554 OF 2024 BETWEEN: MR. FARZU S/O ABDUL SATTAR AGED ABOUT 40 YEARS R/AT NO.212/6, 1ST MAIN 6TH CROSS, MAHADEVAPURA MAIN ROAD SHANTHINAGAR MYSURU DISTRICT-570 019. …PETITIONER (BY SRI. R.K. MAHADEVA, ADVOCATE) AND: 1. STATE BY UDAYAGIRI POLICE STATION, K.R. PET MANDYA DISTRICT - 571 426 REPRESENTED BY S.P.P., BENGALURU-560 001. 2. SRI POOVAIAH K.C. AGED ABOUT 49 YEARS INSPECTOR OF POLICE ORGANIZED CRIME AND ANTI ROWDY SQUAD CCB UNIT, RAJENDRA NAGAR MYSURU-570 007. …RESPONDENTS (BY SRI. M.R. PATIL, HCGP) THIS CRL.P IS FILED U/S 482 CR.PC PRAYING TO QUASH THE FIR, COMPLAINT DATED 16.01.2024 IN CRIME NO.6/2024 REGISTERED BY THE 1ST RESPONDENT POLICE Digitally signed by B K MAHENDRAKUMAR Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:9646 CRL.P No. 4554 of 2024 I.E., UDAYAGIRI POLICE, FOR THE OFFENCES P/U/S 20(b)(ii)(C) OF NDPS ACT, 1985 AGAINST THE ACCUSED PERSONS AND PROCEEDINGS IN SPL.C.NO.136/2024 PENDING BEFORE THE HON'BLE PRINCIPAL DISTRICT AND SESSION JUDGE AT MYSURU VIDE ANNEXURE A, B AND D. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR ORAL ORDER 1. The petitioner, Accused No.1 facing charges for offences punishable under Section 20(b)(ii)(C) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter “NDPS Act”) in Crime No.6/2024 is before this Court seeking relief. 2. The prosecution alleges that on January 16, 2024, while the complainant and his staff were on patrol duty, they noticed two persons riding a bike that lacked a registration number. When these persons attempted to escape, the complainant and his staff intercepted the bike. Upon inspection, it was discovered that the two persons, Accused No.2 and Accused No.3, were in possession of one kilogram of ganja. 3. After apprehension, it is stated that Accused No.2 and Accused No.3, in their voluntary statements, claimed that they had procured ganja from the godown. Based on their statements, the police conducted a raid on the godown and discovered that 56 kilograms of ganja were stored therein. The complainant recorded the statement of the godown owner, who stated that her father was - 3 - NC: 2025:KHC:9646 CRL.P No. 4554 of 2024 in control of the godown. Based on the statements of the co- accused and the owner’s daughter, the petitioner is arrayed as Accused No.1. 4. The learned counsel for the petitioner submits that Section 51 of the NDPS Act contemplates that the provisions of the Code of Criminal Procedure, 1973 (hereinafter “Cr.P.C.”) apply to all searches and seizures conducted under the Act. Consequently, a search and seizure conducted without obtaining a warrant or recording the reasons for doing so culminating in the taking of cognizance of the offence is vitiated due to non-compliance with the mandatory provisions contained in Section 100 of the Cr.P.C. 5. He further submitted that, apart from the statement of the daughter of Petitioner-Accused No.1 who allegedly stated that the godown is under the petitioner’s control there is no corroborative material to substantiate that Petitioner-Accused No.1 was in control of the godown on the date of the incident. 6. He also contends that the confession statement of the co-accused, recorded under Section 67 of the Cr.P.C., is not admissible in law, as held by the Apex Court in Toofan Singh v. The State of Tamil Nadu (2021) 4 SCC 1. 7. In response, the learned High Court Government Pleader argued that the statement of the daughter clearly establishes that the petitioner was in control of the godown even though the godown is registered in her name. He further contended that the possession of 56 kilograms of ganja constitutes the - 4 - NC: 2025:KHC:9646 CRL.P No. 4554 of 2024 commission of the offence alleged against the petitioner. The Pleader maintained that the veracity of this allegation cannot be examined in this petition but must be considered only after a full- fledged trial, and he therefore sought dismissal of the petition. 8. Heard the learned counsel for the parties and duly considered their arguments. 9. In the case of Toofan Singh (supra), the Apex Court with reference to Section 67 of the NDPS Act, and its admissibility in evidence ruled as follows: Para “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. Para 67. Equally, when we come to Section 67(c) of the NDPS Act, the expression used is “examine” any person acquainted with the facts and circumstances of the case. The “examination” of such person is again only for the purpose of gathering information so as to satisfy himself that there is “reason to believe” that an offence has been committed. This can, by no stretch of imagination, be equated to a “statement” under Section 161 CrPC, as is argued by Shri Lekhi, relying upon Sahoo v. State of U.P. - 5 - NC: 2025:KHC:9646 CRL.P No. 4554 of 2024 [Sahoo v. State of U.P., (1965) 3 SCR 86 : AIR 1966 SC 40 : 1966 Cri LJ 68] (at p. 88), which would include the making of a confession, being a sub-species of “statement”. Para 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 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. Para 158. We answer the reference by stating: Para 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. - 6 - NC: 2025:KHC:9646 CRL.P No. 4554 of 2024 Para 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.” 10. What is apparent from the ratio enunciated by the Apex Court in the case of Toofan Singh (supra) is summarized as follows: i) The statement recorded under Section 67 is antecedent stage to the investigation which occurs after the concerned officer under Section 42 has “reason to believe”, upon information gathered in an enquiry made in that behalf. ii) The purpose of recording statements under Section 67 is to gather information to satisfy that there is reason to believe that the offence has been committed. iii) The officers invested with power under Section 53 of the NDPS Act are police officers within the meaning of Section 25 of the Evidence Act. iv) The statement recorded under Section 67 cannot be used as a confessional statement in the trial of an offence under the NDPS Act. In light of the aforementioned principles of law established by the Apex Court, the primary issue needs to be addressed. - 7 - NC: 2025:KHC:9646 CRL.P No. 4554 of 2024 11. As observed in the preceding paragraphs, there was no recovery of the subject drug from the petitioner, either from his physical or constructive possession. Accused Nos. 2 and 3, were apprehended, stated in their voluntary statements that they procured ganja from the godown belonging to Petitioner-Accused No.1. Admittedly, the godown is registered in the name of the daughter of Petitioner-Accused No.1, and her recorded statement categorically stated that her father was in control of the godown. However, apart from the statements of the co-accused and the daughter, there is no substantive evidence to establish that the petitioner was in control of, or managing, the godown. 12. In view of the above, I pass the following: ORDER i) The criminal petition is allowed. ii) The impugned proceedings in Spl.Case No.136/2024 (arising out of Crime No.6/2024) of Udayagiri Police Station, Devaraja Sub-Division, Mysuru City, on the file of the learned Principal District and Sessions Judge at Mysuru , insofar it relates to petitioner-accused No.1 herein is hereby quashed. Sd/- (HEMANT CHANDANGOUDAR) JUDGE HR List No.: 1 Sl No.: 106