Karnataka High Court
Mr Fakrudeen @ Irfan vs The State By on 25 June, 2025
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
-1-
NC: 2025:KHC:22334
CRL.P No. 14183 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
CRIMINAL PETITION NO. 14183 OF 2024
BETWEEN:
MR. FAKRUDEEN @ IRFAN,
SON OF MR. ABDUL RAHIMAN,
AGED ABOUT 32 YEARS,
R/AT NO.2-31/2,
SAFWAN MANZIL, NEAR MASJID,
SHANTHINAGAR, KAVUR,
MANGALURU,
DAKSHINA KANNADA - 575 015.
...PETITIONER
(BY SRI. HANEEF M.H., ADVOCATE)
AND:
Digitally THE STATE BY
signed by
CHAITHRA P URVA POLICE STATION,
Location: MANGALURU,
High Court DAKSHINA KANNADA - 575 006.
of Karnataka REPRESENTED BY THE
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.
...RESPONDENT
(BY SMT.SOWMYA R., HCGP)
***
-2-
NC: 2025:KHC:22334
CRL.P No. 14183 of 2024
HC-KAR
THIS CRL.P. IS FILED U/S.482(FILED U/S.528 BNSS)
CR.P.C PRAYING TO A. TO CALL FOR RECORDS, ON THE FILE
OF THE LEARNED PRINCIPAL DISTRIT JUDGE, MANGALURU,
DAKSHINA KANNADA IN SPL.C.No.19/2021; B. QUASH THE
IMPUGNED FINAL REPORT SUBMITTED BY THE RESPONDENT
POLICE URVA P.S., AGAINST THIS PETITIONER IN CRIME
NO.133/2018 FOR THE OFFENCE P/U/S/ 8(c), 20(b), ii(A), 21,
21(c) OF THE NDPS ACT 1985 (ANNEXURE C) PENDING
BEFORE PRINCIPAL D. J. MANGALURU; B. TO QUASH THE
IMPUGNED ORDER DATED 28.01.2021 PASSED BY THE
LEARNED PRINCIPAL DISTRICT JUDGE, MANGALURU,
DAKSHINA KANNADA HAS TAKEN COGNIZANCE OF THE
OFFENCE PUNISHABLE UNDER SECTION 8(C), 20(B) ii(a), 21,
21(c) OF THE NARCOTIC DRUG AND PSYCHOTROPIC
SUBSTANCES ACT, 1985 AGAINST THE PETITIONER IN
SPL.C.NO.19/2021 (ANNEXURE -D); C. TO GRANT SUCH
OTHER ORDER, DIRCTIONS, RELIEF/S AS THIS HON'BLE
COURT DEEMS FIT UNDER THE CIRCUMSTANCES OF THE CASE,
IN THE INTEREST OF JUSTICE AND EQUITY.
THIS CRL.P., COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
In this petition, the petitioner seeks the following
reliefs.
“A) To call for records, on the file of the
learned Principal District Judge, Mangalore,
Dakshina Kannada in Spl.C.No.19/2021;
B) To quash the impugned final report
submitted by the respondent Police Urva P.S.,
against this petitioner in Crime No.133/2018 for
the offence p/u/s/ 8(c), 20(b), ii(a), 21, 21(c) of
-3-
NC: 2025:KHC:22334
CRL.P No. 14183 of 2024HC-KAR
the NDPS Act 1985 (Annexure C) pending before
Principal D. J. Mangaluru;
C) To quash the impugned order dated
28.01.2021 passed by the learned Principal District
Judge, Mangaluru, Dakshina Kannada has taken
cognizance of the offence punishable under Section
8(c), 20(b) ii(a), 21, 21(c) of the Narcotic Drug
and Psychotropic Substances Act, 1985 against the
petitioner in Spl.C.No.19/2021 (Annexure -D);
D) To grant such other order, directions,
relief/s as this Hon’ble Court deems fit under the
circumstances of the case, in the interest of justice
and equity.”
2. Heard the learned counsel for the
petitioner/accused No.3 and learned HCGP for
respondent/State.
3. A perusal of the material on record will indicate
that, on 24.09.2018, a suo motu complaint was filed
against the petitioner/accused No.3 and two other accused
persons, i.e. Mohammed Shakeer (accused No.1) and
Nadeem (accused No.2) in Crime No.133/2018 for the
offences punishable under Sections 20, 21(b) and 21(c) of
the Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter for brevity referred to as “NDPS Act“) by the
-4-
NC: 2025:KHC:22334
CRL.P No. 14183 of 2024
HC-KAR
respondent Police authorities. In pursuance of the same,
the respondent Police conducted investigation, which is
currently pending in Spl.C.No.19/2021 before the learned
Principal District Judge at Mangaluru.
4. In this context, it is relevant to state that a
perusal of the complaint/FIR charge sheet materials,
statement of witnesses, documents etc. will indicate that
the contraband substance was not recovered from the
petitioner/accused No.3, but the same was recovered from
accused No.1 and all that was recovered from the
petitioner was a mobile phone and cash in a sum of
`5,000/-. It is also significant to note that the petitioner
has been arraigned as accused No.3 only on the basis of
an alleged confessional statement of accused No.1 as is
clear from the aforesaid material on record.
5. Under the identical circumstances, in the case of
Sri. Sadiq Pasha Vs. State of Karnataka and Another in
Criminal Petition No.7690/2025 disposed of on
-5-
NC: 2025:KHC:22334
CRL.P No. 14183 of 2024
HC-KAR
12.06.2025, this Court, following its earlier judgments has
held as under:
“In this petition, petitioner No.2 seeks quashing of
the criminal proceedings, pursuant to registration of
FIR in Crime No. 30/2025 by respondent No.1 –
Police, pending on the file of Principal District and
Sessions Judge, Mysuru for the office punishable
under section 20(b)(ii)C of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short “the
NDPS Act“).
2. Heard learned counsel for the petitioner and
learned HCGP for respondents and perused the
material on record.
3. Respondent No.2- Complainant/ Police Officer
lodged a complaint on 01.05.2025 against the
petitioner-accused No.3 as well as Mithun Dhali –
accused No.1 and Babula Madi – accused No.2, on
the subject matter being 32.15 Kg of ganja was
seized from the custody and possession of accused
No.1 and 2 on 01.05.2025 and based on the alleged
statement made by the aforesaid accused No.1 and
2, the petitioner was arrayed as accused No.3.
4. Learned counsel for the petitioner submits that in
the light of the undisputed fact that the subject
matter of the proceedings/32.15 Kg of ganja was not
seized from the custody of the petitioner-accused
No.3, the testimony of the co-accused Mithun Dhali –
accused No.1 and Babula Madi – accused No.2, could
not be made the basis to lodge a complaint as
against the petitioner-accused No.3 as held by this
Court in the case of Mr.Paritosh Chandrashekar
Kulkarni vs. State of Karnataka reported in
Crl.P.No.1850/2023 dated 19.7.2024, whereby
this Court has followed the earlier judgments of the
Hon’ble Apex Court in the case of Tofan Singh Vs.
State of Tamil Nadu reported in(2021) 4 SCC 1as
-6-
NC: 2025:KHC:22334
CRL.P No. 14183 of 2024HC-KAR
well as State vs. Pallulabid Ahmad Arimutta
reported in (2022) 12 SCC 633 as well as
Balwinder Singh vs. Narcotics Control Bureau
reported in 2023 SCC OnLine SC 1213 and also
Firdoskhan Khurshidkhan vs. State of Gujarat
reported in 2024 SCC OnLine SC 680. It is
therefore submitted that impugned proceedings
against the petitioner-accused No.3 deserves to be
quashed.
5. The issue as to whether reliance can be placed
upon the alleged confessional statement of the co-
accused came up for consideration before this Court
in the Paritosh Chandrasheka Kulkarni’s case
(supra), wherein the co-ordinate Bench has held as
under:
“The petitioner/accused No.3 is before this Court
calling in question entire proceedings in split up
Special C. No. 24 of 2022 arising out of Special
C.No.131 of 2019 concerning Crime No.94 of 2018
registered for offences punishable under Sections 8C
and 20(B)(II)(b) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (‘the Act’ for
short).
2. Heard Sri Mahantesh Shettar, learned counsel
appearing for the petitioner and Sri P Thejesh,
learned High Court Government Pleader appearing
for the respondent.
3. Facts, in brief, germane are as follows:-
The petitioner, at the relevant point in time, was a
student of B.Tech in the discipline of Chemical
Engineering at Manipal Institute of Technology,
Manipal. He was a student between 2016 and 2020.
He completes his studies and is pursuing higher
studies in the United States of America – M.S. in
Chemical Engineering at Columbia University. The
issue in the lis is what happened between 2016 and
2020. On 12-08-2018, a suo motu crime comes to
-7-
NC: 2025:KHC:22334
CRL.P No. 14183 of 2024HC-KAR
be registered by the respondent in Crime No.94 of
2018 for the afore-quoted offences. The petitioner
was arraigned as accused No.3. The arraigning of the
petitioner happens on account of statements of
accused Nos. 1 and 2 recorded by the Police. It is
the case of the prosecution that on 12-08-2018 at
around 12 p.m. the police conduct a search in a
particular house near Gurukripa apartment and
seized 1 kg. and 712 gms. of ganja from the hands
of accused Nos. 1 and 2 where accused Nos. 1 and 2
were staying. It is alleged that the petitioner/accused
No.3 ran away from there. Accused Nos. 1 and 2
were taken into custody and the aforesaid quantity of
ganja was seized.
4. The Police record the statements of accused Nos.
1 and 2 wherein they have informed that they got
into the habit of possession and consumption of
ganja from accused No.3, the petitioner and he was
not available for questioning. On 24-08-2018
accused Nos.1 and 2 were enlarged on bail and the
petitioner is seen absconding. The police file a
charge sheet against accused Nos. 1 and 2 and show
the petitioner as an absconder in the charge sheet
filed on 9-07-2019. The concerned Court, takes
cognizance of the offence as afore-quoted and
registers Special case No.131 of 2019. Noticing the
fact that the petitioner was shown as absconder, a
split charge sheet was drawn against the petitioner
on 4-03-2022 in Special C. No.24 of 2022. The
petitioner claims that he then became aware of the
proceedings against him, as he was not in the
country at the time when the trial was on. On
getting to know of the proceedings, the petitioner
has preferred the subject petition seeking quashment
of the entire proceedings.
5. The learned counsel appearing for the petitioner
would vehemently contend that apart from showing
the petitioner as absconder, no attempts are made to
reach the petitioner. It is his case that the name of
the petitioner is drawn only on confessional
-8-
NC: 2025:KHC:22334
CRL.P No. 14183 of 2024
HC-KAR
statements of accused Nos. 1 and 2 recorded under
Section 67 of the Act. It is his submission that
statements of co-accused do not have any
evidentiary value, unless they are corroborated with
the acts of the petitioner. He would seek quashment
of entire proceedings on the said ground.
6. Per contra, the learned High Court Government
Pleader appearing for the respondent would
vehemently refute the submissions to contend that
the petitioner has been absconding, not available for
trial, charge sheet is filed and, therefore, he must
come out clean in the trial. He is not in India.
Therefore, he has not appeared before the concerned
Court on any occasion. Innumerable non-bailable
warrants issued have all become unexecutable, as
the petitioner is beyond the shores of the nation. He
would, nonetheless, seek dismissal of the petition.
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 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:
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;
-9-
NC: 2025:KHC:22334
CRL.P No. 14183 of 2024
HC-KAR
(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 has held as follows:
“…. …. ….
158. We answer the reference by stating:
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
– 10 –
NC: 2025:KHC:22334
CRL.P No. 14183 of 2024
HC-KAR
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 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.,
– 11 –
NC: 2025:KHC:22334
CRL.P No. 14183 of 2024
HC-KAR
(2021) 4 SCC 1: (2021) 2 SCC (Cri) 246] , that a
confessional statement recorded under Section 67
of 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
– 12 –
NC: 2025:KHC:22334
CRL.P No. 14183 of 2024
HC-KAR
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 where the Apex Court holds as
follows:
“…. …. ….
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.
– 13 –
NC: 2025:KHC:22334
CRL.P No. 14183 of 2024
HC-KAR
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 Singh 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.
… … …
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,
– 14 –
NC: 2025:KHC:22334
CRL.P No. 14183 of 2024HC-KAR
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 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.
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.
– 15 –
NC: 2025:KHC:22334
CRL.P No. 14183 of 2024
HC-KAR
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
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
– 16 –
NC: 2025:KHC:22334
CRL.P No. 14183 of 2024
HC-KAR
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.
12. For the aforesaid reasons, the following:
ORDER
(i) Criminal petition is allowed.
(ii) The proceedings in split up Special Case No.24
of 2022 arising out of Special Case No.131 of 2019 in
Crime No. 94 of 2018 pending before the Principal
District and Sessions judge and Special Court, Udupi
stand quashed.
– 17 –
NC: 2025:KHC:22334
CRL.P No. 14183 of 2024
HC-KAR
(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 any other forum.
Consequently, I.A.No.1 of 2023 also stands
disposed.”
6. As is clear from the aforesaid judgment, this Court
places reliance upon earlier judgments of the Hon’ble
Apex Court and came to the conclusion that, mere
confessional statement of the co-accused could not
be made the basis to initiate criminal action as
against the another co-accused, especially when the
subject matter of the proceeding being the Ganja in
question, was not recovered from the custody and
possession of the petitioner. In the instant case, it is
an undisputed fact from the material on record, in
particular, the alleged confessional statement of
accused No.1 and 2 could not be relied upon or made
the basis by respondents to initiate the impugned
criminal proceedings, which deserves to be quashed
since continuation of the same would amount to
abuse of process of law, warranting interference in
the present petition.
7. Accordingly, I pass the following;
ORDER
i. The petition is hereby allowed.
ii. The impugned criminal proceedings in
Cr.No.30/2025 pending on the file of Principal District
and Sessions Judge, Mysuru, insofar as the
petitioner-accused No.3 is concerned, are hereby
quashed.”
– 18 –
NC: 2025:KHC:22334
CRL.P No. 14183 of 2024
HC-KAR
6. As stated supra, in the absence of anything to
establish that any prohibited substance/drug was
recovered from the petitioner/accused No.3, coupled with
the fact that the petitioner has been arraigned as accused
No.3, based on the sole confessional statement of a co-
accused, i.e. accused No.1, it is impermissible in law as
held by this Court in the Sadiq Pasha‘s case (supra).
7. Under these circumstances, I am of the view that
the present proceedings qua petitioner/accused No.3 also
deserves to be quashed.
8. In the result petition, I pass the following:
ORDER
i. The Criminal Petition is hereby allowed;
ii. The impugned proceedings pending in
Spl.C.No.19/2021 (arising out of Crime
No.133/2018 of Urva Police Station), pending on
the file of the learned Principal District Judge at
Mangaluru, Dakshina Kannada, for the offences
– 19 –
NC: 2025:KHC:22334
CRL.P No. 14183 of 2024HC-KAR
punishable under Sections 20, 21(b) and 21(c)
of the Narcotic Drugs and Psychotropic
Substances Act, 1985, qua the petitioner
herein/accused No.3, is hereby quashed.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGEBMV*
List No.: 2 Sl No.: 22