Full Judgment
Reserved on : 02.12.2024
Pronounced on : 10.01.2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA CRIMINAL PETITION No.917 OF 2024 BETWEEN: SRI ABHAY KUMAR S/O SHIVDAYAL MEENA, AGED ABOUT 24 YEARS, RESIDING AT ROOM NO. F-108, IIM BANGALORE HOSTEL, BANNERGHATTA ROAD, BENGALURU - 560 076. PERMANENT RESIDENT OF H.NO.D 280, SIDDHARTHNAGAR, JAIPUR, RAJASTHAN - 302 017. ... PETITIONER (BY SRI MAHESH S., ADVOCATE) AND: UNION OF INDIA REPRESENTED BY INTELLIGENCE OFFICER, NARCOTIC CONTROL BUREAU (NCB), BENGALURU ZONAL UNIT, BENGALURU - 560 001. ... RESPONDENT (BY SMT.SHRIDEVI M.BHOSALE, CGC) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH REGISTRATION OF CRIMINAL PROCEEDINGS IN SPL.C.C.NO.2932/2023, ARISING OUT OF NCB CR.NO.48/1/24/2023/BZU BY RESPONDENT NARCOTICS CONTROL BUREAU PENDING BEFORE XXXIII ADDL. CITY CIVIL AND SESSIONS JUDGE, NDPS SPECIAL COURT, BENGALURU CITY, FOR THE OFFENCES P/U/S 8(c) R/W SEC. 22(c), 27, 27 A, 28 AND 29 OF NDPS ACT AS AGAINST THE PETITIONER.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 02.12.2024, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:- CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner is before this Court calling in question proceedings in Special C.C.No. 2932 of 2023 pending before XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS cases at Bengaluru and arising out of NCB Crime No.48/1/24/2023/BZU registered by the respondent for offences punishable under Section 8(c) r/w Sections 22(c), 27, 27A, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘the Act’ for short).
2. Heard Sri S.Mahesh, learned counsel appearing for the petitioner and Smt. Shridevi M. Bhosale, learned Central Government Counsel appearing for the respondent.
3. Facts in brief, germane, are as follows:-
On receipt of credible information of a post parcel sent from Coimbatore to Marathalli Post Office, suspected of containing drugs, was seized by the Narcotic Control Bureau (‘NCB’), the respondent. It drew up a mahazar, repacked the consignment with dummy parcel and alleging that the petitioner is involved in the said receipt of parcel took him into custody. The statement of accused No.3 and the petitioner were then recorded. The police, after investigation, filed a charge sheet against 5 accused. The petitioner is arrayed as accused No.2 for the afore-quoted offences. Registration of crime is what has driven the petitioner to this Court in the subject petition.
4. The learned counsel Sri S.Mahesh appearing for the
petitioner would submit that his solitary contention in the case at hand would be that it is in violation of Section 50A of the Act. It is his submission that ‘controlled delivery’ as obtaining in Section 50A of the Act must be undertaken by the designated officer. In the case at hand, it is an admitted fact that it is not by the designated officer. He would, therefore, contend that it has vitiated the aftermath of initiation of crime and would seek that the petition be allowed on the sole score of violation of Section 50A of the Act.
5. Per contra, the learned Central Government counsel
appearing for the NCB would vehemently refute the submissions to contend that Section 50A which deals with power to undertake controlled delivery uses the word ‘may’. Since it is directory, it is not mandatory that only the officer authorized by the NCB should undertake controlled delivery. The learned counsel would submit that there are plethora of circumstances in which investigation and filing of charge sheet that pin down the petitioner. Therefore, the petitioner is guilty of the offence so alleged. She would seek dismissal of the petition.
6. The learned counsel for the petitioner would join issue to
place reliance upon the judgment of the coordinate Bench while granting bail. It is his submission that from the date of granting bail till today, there is no other circumstance as bail is granted only on the concept of controlled delivery. The learned counsel would admit that if the issue of controlled delivery goes against the petitioner it becomes a matter of trial and if the contention of controlled delivery merits acceptance, the aftermath of registration of crime would become illegal.
7. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
8. The afore-narrated facts are a matter of record. A
complaint is registered on 20-06-2023. It is the case of the complainant that he received an information that a parcel containing suspected drugs would be received in Marathahalli Colony Sub-Post Office, Bangalore. A team of NCB goes into the post office, meets CW-5 Post Master, gives a request to hand over the parcel and asks her to become an independent witness. The complaint would further narrate that the Investigating Officer on 20-06-2023 requests the Post Master for delivery of a dummy parcel which is designated to be delivered to one Junaid Hussain Haveri, accused No.3 and later the parcel to be delivered from Junaid Hussain Haveri to the petitioner. Since the entire issue now revolves round Section 50A, I deem it appropriate to notice Section 50A of the Act. It reads as follows:
“50-A. Power to undertake controlled delivery.- The Director General of Narcotics Control Bureau constituted under sub-section (3) of Section 4 or any other officer authorised by him in this behalf, may, notwithstanding anything contained in this Act, undertake controlled delivery of any consignment to-
(a) any destination in India;
(b) a foreign country, in consultation with the competent authority of such foreign country to which consignment is destined, in such manner as may be prescribed.”
Section 50A permits carrying out of controlled delivery by the Director General of NCB or any other officer authorised by him in this behalf. The authorisation to the officer must be under Section 4 of the Act. Section 4 of the Act reads as follows:
“4. Central Government to take measures for preventing and combating abuse of and illicit traffic in narcotic drugs, etc.-(1) Subject to the provisions of this Act, the Central Government shall take all such measures as it deems necessary or expedient for the purpose of preventing and combating abuse of narcotic drugs and psychotropic substances and the illicit traffic therein and for ensuring their medical and scientific use.
(2) In particular and without prejudice to the
generality of the provisions of sub-section (1), the measures which the Central Government may take under that sub- section include measures with respect to all or any of the following matters, namely:-
(a) coordination of actions by various officers, State Governments and other authorities-
(i) under this Act, or
(ii) under any other law for the time being in force in connection with the enforcement of the provisions of this Act;
(b) obligations under the International Conventions;
(c) assistance to the concerned authorities in foreign
countries and concerned international organisations with a view of facilitating coordination and universal action for prevention and suppression of illicit traffic in narcotic drugs and psychotropic substances;
(d) identification, treatment, education, after care, rehabilitation and social re-integration of addicts;
(da) availability of narcotic drugs and psychotropic substances for medical and scientific use;
(e) such other matters as the Central Government
deems necessary or expedient for the purpose of securing the effective implementation of the provisions of this Act and preventing and combating the abuse of narcotic drugs and psychotropic substances and illicit traffic therein.
3) The Central Government may, if it considers it necessary or expedient so to do for the purposes of this Act, by order, published in the Official Gazette, constitute an authority or a hierarchy of authorities by such name or names as may be specified in the order for the purpose of exercising such of the powers and functions of the Central Government under this Act and for taking measures with respect to such of the matters referred to in sub-section (2) as may be mentioned in the order, and subject to the supervision and control of the Central Government and the provisions of such order, such authority or authorities may exercise the powers and take the measures so mentioned in the order as if such authority or authorities had been empowered by this Act to exercise those powers and take such measures.”
Sub-section (3) of Section 4 directs constitution of an authority by the Central Government with specified powers. Section 50A refers to Section 4(3). It is the officer who has been authorised has to undertake such controlled delivery. ‘Controlled delivery’ in the case at hand is undertaken in the manner that is described hereinabove.
9. The contention of the learned counsel for the petitioner is
that controlled delivery has to be mandatorily undertaken by the Director General of NCB or an officer authorised by him. Here, the respondent/Investigating Officer is neither the Director General nor the officer authorised by him, has undertaken controlled delivery. The issue now would be whether Section 50A of the Act is mandatory insofar as it directs a particular officer or a particular officer authorised by the Director General to be the only person to undertake controlled delivery.
10. It becomes germane to notice the findings rendered by
the coordinate Bench while granting bail to the petitioner. The findings would lend necessary support the contention of learned counsel for the petitioner coordinate Bench in the case of
MR.JUNAID HUSSAIN HAVERI v. UNION OF INDIA1, has held
as follows: “…. …. ….
10. Section 50A of the NDPS Act provides the power to
undertake "controlled delivery". Section 50A of the NDPS Act reads as follows:- Criminal Petition No.6853 of 2023 and connected cases decided on 12th September, 2023 "[50A. Power to under take controlled delivery.- The Director General of Narcotics Control Bureau constituted under subsection (3) of section 4 or any other officer authorised by him in this behalf, may, notwithstanding anything contained in this Act, undertake controlled delivery of any consignment to-
(a) any destination in India;
(b) a foreign country, in consultation with the competent authority of such foreign country to which such consignment is destined, in such manner as may be prescribed.]"
11. From a reading of the aforesaid provisions of law,
it is very clear that, exercise of "controlled delivery" which is a investigative tool is undertaken by the investigating officers who are authorised as provided under section 50A of the NDPS Act with a view to identifying the persons involved in the commission of the offence under the NDPS Act.
12. Learned Senior Counsel appearing for
accused No.3 has raised a specific contention that requirements of Section 50A of the NDPS Act has not been complied with by the NCB officers before undertaking the exercise of "controlled delivery". He submits that, the officers were not authorised under Section 50A of the NDPS Act and therefore, it cannot be said that the accused persons were identified.
13. Learned counsel appearing for respondent
has failed to demonstrate before this court that, the officers who had undertaken the exercise of "controlled delivery" with the help of postman and post master of Marathahalli sub post office were authorised as provided under section 50A of the NDPS Act. In the absence of authorization as provided under Section 50A of the NDPS Act which is the mandatory requirement of law, it cannot be said that exercise of "controlled delivery" undertaken by the NCB officers had successfully led them to identify the persons involved in the commission of offence under NDPS Act. The NCB officers have recorded the delivery proceedings of dummy parcel of speed post on 20.06.2023 at 17 hours. A perusal of the said report
would indicate that, there is no mention about authorization under section 50A of the NDPS Act obtained by the officers before undertaking the "controlled delivery" mechanism. In fact, from reading of the delivery proceedings it is seen that immediately after the consignment was opened by the NCB officers in the post office, they had requested the postmaster to designate postman for the purpose of "controlled delivery" exercise. In addition to the same, the exercise of "controlled delivery" was undertaken by the NCB only as against accused Nos.2 and 3. Though it is the specific case of the prosecution that the consignment was booked by accused No.1 through accused No.2 in the name of accused No.3, the exercise of "controlled delivery" was not undertaken by the NCB officers as against accused No.1 for the reasons best known to them.
…. …. ….
23. There is also no material to show that
accused Nos.2 and 3 had the knowledge that the consignment/parcel which was booked by accused No.1 contain contained narcotic drugs/psychotropic substance. Since the consignment/parcel was opened even before it was delivered to the addressee and the contraband article found in the consignment/parcel was seized under a panchanama in the absence of accused, the only option open for the NCB officers to connect the accused to the crime was by identifying them through the technique known as "controlled delivery". However, since the NCB officers have not complied with mandatory requirements of section 50A of the NDPS Act before undertaking the exercise of "controlled delivery", the report of "controlled delivery" on which reliance has been placed by the prosecution cannot be considered since the exercise of "controlled delivery" gets vitiated for non-compliance of the mandatory requirement under section 50A of the NDPS Act.”
(Emphasis supplied) The coordinate Bench granting bail clearly holds that panchanama would indicate that NCB has not complied with the mandatory requirements of Section 50A before undertaking the exercise of controlled delivery and non-compliance of Section 50A would vitiate entire proceedings. The said order granting bail, as on today has become final.
11. I am in complete agreement with the reasons so rendered
by the coordinate Bench while granting bail. Since the only submission made by the learned counsel appearing for the petitioner was with regard to controlled delivery and that having found favour with the petitioner, all further proceedings in the aftermath of undertaking controlled delivery, would become contrary to law, and lead to obliteration of the crime against the petitioner.
12. For the aforesaid reasons, the following:
ORDER
(i) Criminal Petition is allowed.
(ii) Proceedings in Special C.C. No.2932 of 2023 pending
before the XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS Cases at Bangalore arising out of NCB Crime No.48/1/24/2023/BZU of Narcotics Control Bureau 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 or influence the proceedings against any other accused pending before the concerned Court. SD/- ____________________ JUSTICE M.NAGAPRASANNA Bkp CT:MJ