- 1 - NC: 2025:KHC-D:3094 CRL.P No. 100722 of 2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 14TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR CRIMINAL PETITION NO. 100722 OF 2025 (482(Cr.PC)/528(BNSS)) BETWEEN: FHURKHAN RIYAZ AHMAD KITTUR AGE. 29 YEARS, OCC. STUDENT, R/O. JAYANAGAR, 2ND MAIN ROAD, 1ST CROSS, DHARWAD, TQ AND DIST. DHARWAD-580001. …PETITIONER (BY SRI. H.N.GULARADDI, ADVOCATE) AND: THE STATE OF KARNATAKA SUB DIVISION VIDYAGIRI PS, THROUGH DHARWAD PS STATION, R/BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH AT DHARWAD. …RESPONDENT (BY SRI. T.HANUMAREDDY, AGA) THIS CRIMINAL PETITION IS FILED U/SE. 482 OF CR.P.C. (U/S. 528 OF BNSS, 2023) SEEKING TO QUASH DATED 05.07.2023 BY THE PRL. DISTRICT AND SESSIONS JUDGE, DHARWAD IN SPL. NDPS C.C.NO. 20/2023 FOR THE OFFENCE P/U/SEC. 21(b) OF NDPS ACT, 1985 AGAINST THE ACCUSED NO. 02 AND PETITIONER HEREIN, PRODUCED AT ANNEXURE-D. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR Digitally signed by B K MAHENDRAKUMAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.02.22 12:18:37 +0530 - 2 - NC: 2025:KHC-D:3094 CRL.P No. 100722 of 2025 ORAL ORDER 1. The petitioner/accused No.2, who has been charge- sheeted for an offence punishable under Section 21(b) of the Narcotic Drugs and Psychotropic Substances Act (for short, ‘the NDPS Act’), is before this Court seeking relief. 2. The prosecution alleges that on 01.05.2023, upon receiving credible information that a person in possession of cocaine was boarding a train, the complainant, along with gazetted officers and panchas, proceeded to the location. Upon noticing the raiding team, accused No.1 attempted to escape but was apprehended. It was then discovered that he was carrying 9 grams of cocaine, excluding the cover. 3. Accused No.1, in his voluntary statement, is alleged to have confessed that the cocaine seized from him was given by accused No.2. 4. Heard the learned counsel for the petitioner and the learned Additional Government Advocate for the respondent-State. 5. Accused No.1 was caught by the raiding team, and upon his apprehension, his voluntary statement was recorded. In this statement, he is alleged to have confessed that the cocaine he was carrying was given to him by accused No.2. However, apart from the confession of accused No.1, there is no corroborative material to substantiate the allegation against the petitioner. - 3 - NC: 2025:KHC-D:3094 CRL.P No. 100722 of 2025 6. 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. [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. - 4 - NC: 2025:KHC-D:3094 CRL.P No. 100722 of 2025 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. 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.” 7. 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. - 5 - NC: 2025:KHC-D:3094 CRL.P No. 100722 of 2025 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. 8. As observed in the preceding paragraphs, there was no recovery of the subject drug from the petitioner, either from his physical or constructive possession. The petitioner is sought to be prosecuted solely on the basis of his voluntary statement. The Apex Court has ruled that a statement recorded under Section 67 cannot be used as a confessional statement in the trial. Additionally, there has been no recovery of any material that could be considered incriminating. The absence of such evidence implies that the statement alone does not establish any connection to the alleged offence. In such circumstances, the continuation of the criminal proceedings will be an abuse of the process of the law. 9. Accordingly, the petition is allowed. The impugned proceedings in Spl.NDPS. C.C.No.20/2023 on the file of the - 6 - NC: 2025:KHC-D:3094 CRL.P No. 100722 of 2025 Principal District and Sessions Judge, Dharwad, insofar as it relates to accused No.2 is hereby quashed. 10. The learned Special Court to proceed against other accused in accordance with law, without being influenced by any observations made in this order and the observations made, if any, is only for the purpose of present petitioner. Sd/- (HEMANT CHANDANGOUDAR) JUDGE AC Ct:vh List No.: 1 Sl No.: 20