- 1 - HC-KAR NC: 2026:KHC:19642 CRL.P No. 16315 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2026 BEFORE THE HON'BLE MR. JUSTICE M.NAGAPRASANNA CRIMINAL PETITION NO. 16315 OF 2025 BETWEEN: SYED SHOAIB, S/O SYED AFROZ, AGED ABOUT 26 YEARS, RESIDING AT NO.7, 2ND CROSS, 5TH MAIN ROAD, VASANTHAPPA BLOCK, R.T.NAGAR, BANGALORE - 560 032. …PETITIONER (BY SRI. HARISH KUMAR M.R., ADVOCATE) AND: 1. THE STATE OF KARNATAKA, BY R.T.NAGAR POLICE STATION, BENGALURU - 560 032. REPRESENTED BY SPP Digitally signed by SANJEEVINI J KARISHETTY Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:19642 CRL.P No. 16315 of 2025 HIGH COURT OF KARNATAKA, BANGALORE - 560 001. 2. BHEEMARAYA, POLICE SUB INSPECTOR, R T NAGAR POLICE STATION, BENGALURU - 560 032. …RESPONDENTS (BY SRI.CHANNAPPA ERAPPA, HCGP FOR R1) THIS CRL.P. IS FILED U/S 482 OF CR.P.C (U/S 528 BNSS) PRAYING TO QUASH THE CHARGE SHEET IN CR.NO.9/2024 (SPL.CC.NO.1589/2024) OF R.T.NAGARA P.S., FOR THE OFFENCES P/U/S 8(c), 22(c), 29 OF NDPS ACT, 1985, PENDING BEFORE THE LEARNED XXXIV ADDL. CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE FOR NDPS CASES, AT BENGALURU (CCH-35). THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - HC-KAR NC: 2026:KHC:19642 CRL.P No. 16315 of 2025 CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA ORAL ORDER The petitioner - accused No.2 is at the doors of this Court calling in question proceedings in Spl.C.C.No.1589 of 2024 registered for the offences punishable under Sections 8(c), 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act' for short). 2. Heard Sri. Harish Kumar M.R., learned counsel appearing for the petitioner, Sri. Channappa Erappa, learned HCGP appearing for respondent No.1 and have perused the material on record. 3. A crime comes to be registered in Crime No.9 of 2024 for offences punishable under Sections 8(c) and 22(c) of the NDPS Act against accused no.1. The statement of accused No. 1 is recorded. While so recording, the name of the petitioner springs in the voluntary statement of accused No.1. The allegation against the petitioner is that he was a friend of Accused No. 1, supplied drugs to him, and maintained contact with drug suppliers. Based on this allegation the petitioner is - 4 - HC-KAR NC: 2026:KHC:19642 CRL.P No. 16315 of 2025 drawn into the web of crime by arraying him as accused No.2 in the charge sheet. Barring this, there is no recovery from the hands of the petitioner of any narcotic drug or psychotropic substance. All the recovery is from the hands of accused No.1. Further, the investigation records do not disclose any evidence establishing the fact that the petitioner supplied drugs to the accused No.1. 4. Therefore, the petitioner is now pinned down solely on the voluntary statement of the co-accused, which cannot be permitted to be continued in light of the settled principle of law as laid down by the Apex Court in the case of TOFAN SINGH v. STATE OF TAMIL NADU1 which has been followed by this Court in the case of PARITOSH CHANDRASHEKAR KULKARNI v. STATE OF KARNATAKA2, wherein this Court holds as follows: “…. …. …. 8. The afore-narrated facts are not in dispute. It is a matter of record that when the crime was registered and the house was searched, it related only to accused Nos. 1 and 2. Statements of accused Nos. 1 and 2 were recorded under Section 67 of the Act. Section 67 of the Act reads as follows: 1 (2021) 4 SCC 1 2 2024 SCC OnLine Kar 4785 - 5 - HC-KAR NC: 2026:KHC:19642 CRL.P No. 16315 of 2025 “67. Power to call for information, etc.—Any officer referred to in Section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provision of this Act— (a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder; (b) require any person to produce or deliver any document or thing useful or relevant to the enquiry; (c) examine any person acquainted with the facts and circumstances of the case.” (Emphasis supplied) The empowered officer is entitled to record the statement of the accused in terms of the afore-quoted provision of the Act. The statements of accused 1 and 2 were recorded. When the search was conducted the petitioner was not found anywhere. It is the case of accused Nos. 1 and 2 while giving statements that the petitioner ran away from the place and it is because of the petitioner that they have got into the habit of consuming ganja. These are statements rendered by accused Nos. 1 and 2. This is again a matter of record. 9. The petitioner is dragged into the crime as accused No. 3 and in the charge sheet as absconder only on the confessional statements made by accused Nos. 1 and 2. There is no corroboration of any of the fact that became attachable to the petitioner. Therefore, it becomes an admitted fact that the petitioner is got into the web of crime only on the confessional statements of the co- accused without any spec of corroboration. In such circumstances, whether further proceedings should be permitted against the petitioner is required to be answered. The answer need not detain this Court for long or delve deep into the matter. 10. The Apex Court in the case of Tofan Singh v. State of Tamil Nadu,[ (2021) 4 SCC 1] has held as follows: … ... … 158. We answer the reference by stating: - 6 - HC-KAR NC: 2026:KHC:19642 CRL.P No. 16315 of 2025 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. 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.” (Emphasis supplied) The Apex Court in the case of State v. Pallulabid Ahmad Arimutta [(2022) 12 SCC 633], has held as follows: … ... … 11. Having gone through the records along with the tabulated statement of the respondents submitted on behalf of the petitioner NCB and on carefully perusing the impugned orders [Pallulabid Ahamad Arimutta v. State, 2019 SCC OnLine Kar 3516], [Mohd. Afzal v. Union of India, 2020 SCC OnLine Kar 3433], [Munees Kavil Paramabath v. State, 2020 SCC OnLine Kar 3431], [Abu Thahir v. State, 2019 SCC OnLine Kar 3517], [Mohd. Afzal v. Union of India, 2020 SCC OnLine Kar 1294], [Munees Kavil Parambath v. State of Karnataka, 2020 SCC OnLine Kar 3432] passed in each case, it emerges that except for the voluntary statements of A-1 and A-2 in the first case and that of the respondents themselves recorded under Section 67 of the NDPS Act, it appears, prima facie, that no substantial material was available with the prosecution at the time of arrest to connect the respondents with the allegations levelled against them of indulging in drug trafficking. It has not been denied by the prosecution that except for the respondent in SLP (Crl.) No. 1569 of 2021, none of the other respondents were found to be in possession of commercial quantities of psychotropic substances, as contemplated under the NDPS Act. 12. It has been held in clear terms in Tofan Singh v. State of T.N. [Tofan Singh v. State of T.N., (2021) 4 SCC 1 : (2021) 2 SCC (Cri) 246], that a confessional statement recorded under Section 67 of - 7 - HC-KAR NC: 2026:KHC:19642 CRL.P No. 16315 of 2025 the NDPS Act will remain inadmissible in the trial of an offence under the NDPS Act. In the teeth of the aforesaid decision, the arrests made by the petitioner NCB, on the basis of the confession/voluntary statements of the respondents or the co-accused under Section 67 of the NDPS Act, cannot form the basis for overturning the impugned orders [Pallulabid Ahamad Arimutta v. State, 2019 SCC OnLine Kar 3516], [Mohd. Afzal v. Union of India, 2020 SCC OnLine Kar 3433], [Munees Kavil Paramabath v. State, 2020 SCC OnLine Kar 3431], [Abu Thahir v. State, 2019 SCC OnLine Kar 3517], [Mohd. Afzal v. Union of India, 2020 SCC OnLine Kar 1294], [Munees Kavil Parambath v. State of Karnataka, 2020 SCC OnLine Kar 3432] releasing them on bail. The CDR details of some of the accused or the allegations of tampering of evidence on the part of one of the respondents is an aspect that will be examined at the stage of trial. For the aforesaid reason, this Court is not inclined to interfere in the orders dated 16-9-2019 [Pallulabid Ahamad Arimutta v. State, 2019 SCC OnLine Kar 3516], 14-1-2020 [Mohd. Afzal v. Union of India, 2020 SCC OnLine Kar 3433], 16-1-2020 [Munees Kavil Paramabath v. State, 2020 SCC OnLine Kar 3431], 19-12-2019 [Abu Thahir v. State, 2019 SCC OnLine Kar 3517] and 20-1-2020 [Munees Kavil Parambath v. State of Karnataka, 2020 SCC OnLine Kar 3432] passed in SLP (Crl.) No. arising out of Diary No. 22702 of 2020, SLP (Crl.) No. 1454 of 2021, SLP (Crl.) No. 1465 of 2021, SLPs (Crl.) Nos. 1773-74 of 2021 and SLP (Crl.) No. 2080 of 2021 respectively. The impugned orders [Pallulabid Ahamad Arimutta v. State, 2019 SCC OnLine Kar 3516], [Mohd. Afzal v. Union of India, 2020 SCC OnLine Kar 3433], [Munees Kavil Paramabath v. State, 2020 SCC OnLine Kar 3431], [Abu Thahir v. State, 2019 SCC OnLine Kar 3517], [Mohd. Afzal v. Union of India, 2020 SCC OnLine Kar 1294], [Munees Kavil Parambath v. State of Karnataka, 2020 SCC OnLine Kar 3432] are, accordingly, upheld and the special leave petitions filed by the petitioner NCB seeking cancellation of bail granted to the respective respondents, are dismissed as meritless.” (Emphasis supplied) The Judgment in the case of Tofan Singh is reiterated in Balwinder Singh v. Narcotics Control Bureau [2023 SCC OnLine SC 1213], where the Apex Court holds as follows: … ... … - 8 - HC-KAR NC: 2026:KHC:19642 CRL.P No. 16315 of 2025 26. Now that it has been declared in Tofan Singh's case (supra) that the judgments in the case of Kanhaiyalal (supra) and Raj Kumar Karwal (supra) did not state the correct legal position and they stand overruled, the entire case set up by the prosecution against Balwinder Singh, collapses like a House of cards. It is not in dispute that Balwinder Singh was not apprehended by the NCB officials from the spot where the naka was laid and that Satnam Singh alone was apprehended in the Indica car. The version of the prosecution is that after Satnam Singh was arrested, his statement was recorded under Section 67 of the NDPS Act wherein he ascribed a specific role to the co-accused - Balwinder Singh and the Sarpanch. The NCB officers claimed that they were on the lookout for both of them since they had managed to run away from the spot. While Sarpanch could not be apprehended, the NCB officers learnt from reports in the newspaper that Balwinder had been arrested by the Amritsar Police in an NDPS case and was lodged in the Central Jail, Amritsar. Permission was taken from the concerned Court to take Balwinder Singh into custody in the instant case and he was arrested. A notice was served on him under Section 67 of the NDPS Act and his statement was recorded. Treating his statement as a confessional statement, Balwinder Singh was arrested. 27. Once the confessional statement of the co- accused, Satnam Singh recorded by the NCB officers under Section 67 of the NDPS Act, who had attributed a role to Balwinder Singh and the subsequently recorded statement of Balwinder Singh himself under Section 67 of the NDPS Act are rejected in the light of the law laid down in Tofan Singh (supra), there is no other independent incriminating evidence that has been brought to the fore by the prosecution for convicting Balwinder Singh under the NDPS Act. On ignoring the said confessional statements & recorded before the officers of the NCB in the course of the investigation, the vital link between Balwinder Singh3 and the offence for which he has been charged snaps conclusively and his conviction order cannot be sustained. 28. As a result of the above discussion, we are of the opinion that Balwinder Singh deserves to be acquitted of the charge of being in conscious possession of commercial quantity of heroin under the NDPS Act. Ordered accordingly. - 9 - HC-KAR NC: 2026:KHC:19642 CRL.P No. 16315 of 2025 … ... … 31. Thus, it can be seen that the initial burden is cast on the prosecution to establish the essential factors on which its case is premised. After the prosecution discharges the said burden, the onus shifts to the accused to prove his innocence. However, the standard of proof required for the accused to prove his innocence, is not pegged as high as expected of the prosecution. In the words of Justice Sinha, who speaking for the Bench in Noor Aga (supra), had observed that: “58. ……. Whereas the standard of proof required to prove the guilt of the accused on the prosecution is “beyond all reasonable doubt” but it is “preponderance of probability” on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established.” 32. The essence of the discussion in the captioned case was that for attracting the provisions of Section 54 of the NDPS Act, it is essential for the prosecution to establish the element of possession of contraband by the accused for the burden to shift to the accused to prove his innocence. This aspect of possession of the contraband has to be proved by the prosecution beyond reasonable doubt.” (Emphasis supplied) These judgments are again reiterated by the Apex Court in Firdoskhan Khurshidkhan v. State of Gujarat [2024 SCC OnLine SC 680], holding as follows: ……… ........ ………. “23. Now, coming to the case of appellant Firdoskhan(A-2) in Criminal Appeal No. 2044 of 2010. 24. It is not in dispute that the appellant Firdoskhan(A- 2) was not apprehended on the spot or at the time of seizure. On a perusal of the panchnama(Exhibit- 30), it is evident that Firdoskhan is not named therein. We find that even though Anwarkhan(A-1) was present with the raiding team from 4.30 p.m onwards, no effort was made by any of the NCB officials to make an inquiry from him regarding the identity of his companion who allegedly fled away from the spot. - 10 - HC-KAR NC: 2026:KHC:19642 CRL.P No. 16315 of 2025 25. The name of Firdoskhan(A-2) cropped up for the first time in the statement of Anwarkhan(A-1) recorded under Section 67 of the NDPS Act. However, we are duly satisfied that the sequence in which the said statement came to be recorded completely discredits the reliability thereof. Anwarkhan(A-1) was apprehended at the bus stand with the packet of narcotic drug at around 4 : 30 p.m. His signatures had been taken on the panchnama(Exhibit-30) prepared at 9 : 00 p.m. and thus, it does not stand to reason that the Intelligence Officer would defer arresting Anwarkhan(A-1) to a later point of time because, as per the arrest memo(Exhibit-43) his arrest is shown at 11 : 45 p.m. It seems that this deferment in formal arrest of Anwarkhan(A-1) was only shown in papers so that the Intelligence Officer could record the statement of Anwarkhan(A-1) under Section 67 of the NDPS Act and avoid the same being hit by the rigours of Article 20(3) of the Constitution of India. 26. The admissibility of a confessional statement of the accused recorded under Section 67 of the NDPS Act was examined by this Court in the case of Tofan Singh (supra) and it was laid down that such confessional statements are not admissible in evidence. 27. Hence, the statement(Exhibit-42) of Anwarkhan(A- 1) wherein he allegedly identified the appellant Firdoskhan(A-2) as the person who had escaped from the spot cannot be read in evidence against the appellant Firdoskhan(A-2) because the manner in which the said statement was recorded leaves much to be desired and creates a grave doubt on the sanctity thereof, in addition to the same having rendered inadmissible by virtue of Tofan Singh (supra). 28. The prosecution witness Deepak Pareek(PW-2) claimed that Firdoskhan(A-2) was apprehended from Shah Jahan Pur Police Station, Madhya Pradesh. However, no document pertaining to the apprehension/detention of appellant Firdoskhan(A-2) at the Shah Jahan Pur Police Station was placed on record by the prosecution. Thus, the very manner in which the said accused was apprehended - 11 - HC-KAR NC: 2026:KHC:19642 CRL.P No. 16315 of 2025 and brought to the NCB Office at Ahmedabad in the purported exercise of recording his statement under Section 67 of the NDPS Act is full of doubt and creates grave suspicion. Even otherwise, the confession of the accused recorded under Section 67 of the NDPS Act cannot be admitted in evidence as a confession as had been held in the case of Tofan Singh (supra). Hence the confessional statement(Exhibit-42) does not lend any succour to the prosecution in its quest to prove the charges against the accused Firdoskhan(A- 2).” (Emphasis supplied) 11. On a coalesce of the judgments rendered by the Apex Court as quoted hereinabove, what would unmistakably emerge is that, the proceedings against the petitioner cannot be permitted to be continued, as there is not an iota of corroboration that would pin the petitioner to the offences, except the voluntary/confessional statements of the co-accused i.e., accused Nos. 1 and 2, recorded under Section 67 of the Act, which is clearly hit by Section 25 of the Evidence Act, as is considered by the Apex Court on an interplay between Section 25 of the Evidence Act and Section 67 of the Act. Permitting further proceedings against the petitioner who at any point in time was not alleged to be involved in any crime except in the aforesaid statements, would become an abuse of the process of law and result in patent injustice. The petitioner, who is a student pursuing his Masters elsewhere, beyond the shores of the nation, should not be made to suffer for the voluntary/confessional statements of the co- accused.” (Emphasis supplied) 5. In the light of the issue standing completely answered by the Apex Court and this Court, and in the absence of any corroborative material against the petitioner, coupled - 12 - HC-KAR NC: 2026:KHC:19642 CRL.P No. 16315 of 2025 with no recovery from the hands of the petitioner, his arraignment as an accused solely on the basis of the statement of the co-accused cannot be sustained. Accordingly, the proceedings cannot be permitted to continue, and the petition deserves to succeed. 6. For the aforesaid reasons, the following: ORDER (i) The petition is allowed. (ii) Proceedings in Spl.C.C.No.1589/2024 pending before the XXXIV Additional City Civil and Sessions Judge and Special Judge for NDPS Cases at Bengaluru (CCH-35) stand quashed qua the petitioner. (iii) It is made clear that the observations made in the course of the order are only for the purpose of consideration of the case of petitioner under Section 482 of Cr.P.C. and the same shall not bind - 13 - HC-KAR NC: 2026:KHC:19642 CRL.P No. 16315 of 2025 or influence the proceedings against any other accused pending before any other fora. SD/- (M.NAGAPRASANNA) JUDGE SJK: List No.: 2 Sl No.: 6