Ragini Dwivedi @ Gini @ Rags vs The State Of Karnataka

registration of FIR and all these bail petitions being filed are :

B.K.Ravishankar, arraigned as accused No. 16 in

Crime No. 109/2020, was accused No.4 in another criminal

case registered by Banasavadi Police Station in Crime No.

588/2018 in relation to offences punishable under NDPS

Act. As the certified copy of the proceedings sheet in Crime

No. 588/2018 discloses, B.K.Ravishankar was produced

before the Special Court Judge on 3.9.2020 at 5.15 PM with

a request for remanding him to police custody. The

prosecution case concerning Crime No. 109/2020 is that on

3.9.2020 at 8.00 AM, B.K.Ravishankar made a statement 8

under section 67 of the NDPS Act before the Assistant

Commissioner of Police, Sri K.C.Goutham disclosing supply,

trafficking and consumption of drugs in the parties arranged

at various places in Bengaluru City. Based on this

information, Sri K.C.Goutham, the Assistant Commissioner

of Police, made a report to the Police Inspector, Cottonpet

Police Station on 4.9.2020 to take action according to

provisions of NDPS Act. In his report to the Police Inspector,

he implicated about 12 persons by their names, they were (1)

Shivaprakash (2) Ragini Dwivedi (3) Viren Khanna (4)

Prashant Ranka (5) Vaibhav Jain (6) Aditya Alva (7) Loom

Pepper @ Simon (8) Prashant Raju (9) Ashwin @ Boogi (10)

Abhiswamy (11) Rahul Tonse (12) Vinay and others. Thus

FIR was initially registered against 12 named accused, and

law was set into motion. In the course of investigation, a

few others were added as accused. Now accused Nos. 2, 3,

4, 5, 7, 11, 13, 14, 15, 16, 17 and 18 are in custody. The

Special Court declined to grant anticipatory bail to the

petitioners who have approached this court under section 9

438 of the Code, and also regular bail to those petitioners

who have made petitions under section 439 of the Code.

4. I have heard elaborate arguments advanced by

learned senior counsel, Sri Hasmath Pasha, Sri Jayakumar

S Patil, Sri C.H.Hanumantharaya, Sri Tomy Sebastian, and

Sri Bharat Kumar and Sri Saravana on behalf of Sri

Satyanarayana Chalke and Sri Veeranna G Tigadi, the

learned Special Public Prosecutor. Sri Tigadi has filed

statement of objections. Contentions in support of the

petitioners urged by each counsel are as follows :

4.1. With a hoard of decisions, Sri Hasmath Pasha,

(for accused-14, Sanjana Galrani) stressed the following

points -

(i) The name of accused-14 was not there in the report given by the ACP-Goutham, the blame is only against the peddlers.

(ii) The report that K.C.Goutham gave was on the basis of statement said to have been made by B.K.Ravishankar, who was already in custody in connection with another case. Though the statement 10

purports to be according to section 67 of the NDPS Act, it is hit by section 25 of the Evidence Act.

(iii) The police officer who received information appears to have not reduced it into writing, there was no compliance of section 42(2) of NDPS Act.

(iv) The articles seized from the house of accused-14 during search were mobile phones, laptops and other electronic gadgets, no contraband was seized.

(v) The materials collected by the investigating officer indicates that accused-14 could be a consumer, for which reason the offence that could be invoked against her is section 27(b) of NDPS Act and the maximum punishment prescribed is six months imprisonment or fine extending upto Rs.10,000/- or with both. This offence is bailable. There are no materials to connect her with other offences.

(vi) Report from FSL in regard to sample collected has not been received, although according to the guidelines, 15 days time is specified.

11 (vii) Accused-14 cannot be compelled to share passwords to open the gadgets, it is against her right to privacy under Article 21, and also violates Article 20(3) of the Constitution of India.

(viii) There is clear violation of human right as she has been detained in custody without any reasonable cause.

(ix) High Court's power to exercise jurisdiction under section 439 of the Code is wide, section 37 of the NDPS Act does not come in the way.

4.2. By Sri Bharat Kumar, on behalf of accused No.4

(Prashanth Ranka)

FIR has been registered in regard to organized drug

racket based on a statement given by another accused,

B.K.Ravishankar. But this statement does not indicate

involvement of accused No.4 in the distribution of drugs or

contraband substances. There cannot be a presumption

about involvement of accused No.4. For invoking the offence

under section 21 of NDPS Act, the quantity of the substance

is very important for, if the quantity of the substance is 12

small, the accused is entitled to be released on bail. Accused

No.4 has been in custody since 8.9.2020, the remand

application does not show as to for what reason he has to be

detained in custody. He is ready to cooperate with police for

completing the investigation and he may be released on bail

by imposing any condition.

4.3. By Sri Jayakumar S Patil on behalf of Sri

Mohammed Tahir, advocate for accused No.2-Ragini

Dwivedi

B.K.Ravishankar's statement was recorded after he

was taken to custody in Crime No. 588/2018 of Banasvadi

Police Station. The order sheet shows that actually he was

arrested on 2.9.2020 though he was produced before the

Magistrate on 3.9.2020. But in the FIR registered in Crime

No.109/2020, there is no reference to Crime No. 588/2018.

This shows deliberate intention of the police to falsely

implicate accused No.2 against whom there is nothing to

indicate that she was organizing the parties. The allegation

is just that she used to participate in the parties and 13

consume small quantity drug. Consumption of drug attracts

section 27(b) of NDPS Act, the punishment prescribed is 6

months imprisonment or fine up to Rs.10,000/- or both. He

further argued that so far as the offence under section 27(A)

of NDPS Act is concerned, there is no material that accused

No.2 financed for, or harboured those who are involved in

illicit traffic of drugs. There is no material for conspiracy or

abatement. The remand applications do not disclose reasons

that necessitate her detention in the custody. Therefore,

accused No.2 is entitled to be released on bail.

4.4. By Sri Tomy Sebastian representing accused No.1 -

Shivaprakash

The statement of Ravishankar shows that he was

introduced to accused No.2 by Shivaprakash. Except this,

there is nothing to show that he participated in the parties

and also that he consumed drugs. In the statement of

objections filed by V.G.Tigadi, it is clearly stated that

materials can be collected only after interrogation; that

means there is no evidence against accused No.1. Accused 14

No.1 assures of his cooperation to the police for completing

the investigation and therefore he is entitled to anticipatory

bail.

4.5. By Sri C.H.Hanumantharaya representing accused-

10 (Abhiswamy)

Unnecessarily, Abhiswamy is arraigned as accused No.

10, but he could be considered as a witness for prosecution.

Statement of Ravishankar shows that accused No.10 did not

introduce a peddler from Nigeria, rather it was one Ashwin

Boogi i.e., accused 9. Referring to the confessional

statement of Loom Pepper, i.e., accused 7, he argued that

Ravishankar did not come to know him for the first time

through accused No.10, rather Ravishankar was in contact

with Loom Pepper since a year prior to 4.9.2020 and if

Ravishankar took the name of accused 10 by chance, it

cannot be said that he was involved in drug racketing.

Therefore accused No.10 appears to have been falsely

implicated. He is a petrol bunk owner as also a landlord. He 15

is always available for investigation. Hence he needs to be

enlarged on anticipatory bail.

4.6. By Sri Satyanarayana Chalke for accused No. 8

Statement of Ravishankar shows that a birthday party

of accused No.8 was arranged on 28.6.2020 at 6.30 PM, but

his birthday falls on 18th July, therefore very participation of

accused No.8 in the birthday party is doubtful.

Ravishankar's statement also does not indicate consumption

of drug by accused No.8. There was no recovery from him,

therefore no presumption can be drawn under section 35 of

NDPS Act. Absolutely there are no materials, chances of

false inculpation cannot be ruled out. Accused No.8 is

therefore entitled to anticipatory bail.

4.7. Argument of Sri V.G.Tigadi, Special Public

Prosecutor

FIR need not be an encyclopedia, it is just a first

information with regard to happening of a crime. The case

on hand is still under investigation. According to NDPS Act,

charge sheet can be filed within 180 days from the date of 16

remand of accused to custody. Still there is time to file

charge sheet.

Statement made by B.K.Ravishankar shows a kind of

conspiracy for promoting the consumption of drugs and

parties were being arranged only for the purpose of

facilitating the sale and consumption of the drugs.

Whenever parties are arranged for this purpose,

manufacturers, financiers, peddlers and facilitators involve.

Therefore, the prosecution case is that there is conspiracy,

about which the investigating officer is collecting materials.

The very purpose of participation of accused Nos. 2

and 14 was to attract large number of consumers as they are

celebrities. The materials so far collected by the

investigating officer show that accused Nos. 2 and 14 are not

only consumers but also sellers and facilitators. Since

parties were being arranged very frequently for promoting

the sale and the consumption, the total quantity of the drugs

sold, distributed and consumed cannot be dissected. Each

individual might consume a very small quantity of drug, but 17

sale and consumption put together exceeds commercial

quantity. It is not as though any drug was not seized; some

seized drug may indicate that it is a small quantity; and

seizure of drugs might be from the possession of some of the

accused, but it does not necessarily mean that commercial

quantity is not involved.

Scope of remand application is limited, it is only for

the purpose of seeking remand of the accused to custody.

Names of witnesses are not disclosed for maintaining secrecy

of investigation. There is threat to the witnesses. Merely for

the reason that names of the witnesses are not disclosed, it

cannot be a ground for granting bail. In a case of this type,

what is essential is to go beyond the complaint or the

remand application for understanding the seriousness of the

offences. These offences are perpetrated against the society,

no individual is a target. The youth of this country are being

lured for promoting the consumption of drugs. In this view,

quantity of the drug does not assume significance. 18

There is compliance of section 42 (2) of NDPS Act. In

fact in the report made by the ACP, Sri Goutham, there is

reference to compliance of section 42 (2) of NDPS Act, and

therefore this ground is not available to the petitioners.

It is the duty of the accused to cooperate with the

investigating officer. A person against whom there are

allegations of committing crime cannot claim immunity

under the garb of "Right to Privacy". The arrested accused

have not been compelled to share their passwords, in fact

they have given passwords in respect of e-mail IDs in which

there are no incriminating materials, but they are not ready

to share the passwords of other e-mail IDs, and for this

reason, adverse inference may be drawn that those e-mail

IDs contain materials helpful for prosecution.

It is true that B.K.Ravishankar is also one of the

accused in Crime No. 588/2018, his statement which led to

registration of FIR in Crime No. 109/2020, was actually

recorded before his arrest in Crime No. 588/2018. The

disclosure that he made in his statement is not hit by 19 section 25 of the Evidence Act, rather it is admissible

according to section 27 of the Evidence Act. He argued that

if an accused reveals involvement of another accused in

commission of a crime, it also amounts to disclosure within

the meaning of section 27 of the Evidence Act. This

statement is also relevant according to section 10 of

Evidence Act. Therefore Ravishankar's statement cannot be

discarded.

It was his further argument that Crime No. 588/2018

was altogether a different crime, merely for the reason that

in the charge sheet, it is mentioned that further investigation

under section 173 (8) of the Code is required, it does not

mean that there was no need to register another FIR in

Crime No. 109/2020. The first FIR was in respect of seizure

of cocaine, the second one, i.e. Cr. No.109/2020 is in

respect of an organized drug racket, hence both are different.

Regarding sample collection, he submitted that there

was no discrepancy actually. In respect of packing the scalp

hairs, separate guidelines were issued. The CFSL returned 20

the hair samples to follow the guidelines, the same has been

set right.

He further argued that accused No. 2 tried to mislead

the investigation by filling water in the bottle when she was

asked to give her urine sample. And in regard to those

accused who have sought anticipatory bail, he submitted

that the traces of drug remain in the hairs for quite long

time, and being aware of this they are avoiding arrest; and

they are waiting for traces of drug to vanish. For all these

reasons, the petitions deserve to be dismissed.

4.8. Reply of Sri Hasmath Pasha and Sri Jayakumar S

Patil

Conspiracy requires strict proof, there must be

evidence indicating conspiracy prior to commission of

offence. Section 10 of the Evidence Act is not applicable

once a person is arrested, and therefore with the arrest of

B.K.Ravishankar, his statement under section 67 of the

NDPS Act cannot be used for proving conspiracy. 21

Crime No. 588/2018 is misused for entangling

accused 2 and 14, who have earned good name in the film

industry. The police wanted media attraction, they foisted a

false story of drug racketing. Post arrest statements of the

accused cannot be made use of. Section 37 of NDPS Act

cannot be stretched too far to deny bail. Section 439 of the

Code confers special powers on the High Court to grant bail

in spite of rigors of section 37 of NDPS Act.

4.9. Reply of Sri Bharat Kumar

In the remand application it is not stated that

passwords are not shared, this aspect therefore cannot be a

reason for declining bail.

5. Discussion

The first aspect to be borne in mind is that while

deciding application for bail, the Courts cannot undertake

the task of assessing the evidence, this is well established

principle. If bail is sought after completion of investigation,

the examination of the charge sheet is limited to finding out 22

the existence of prima facie materials against the accused;

not more than that. But when bail is sought when

investigation is underway, the whole endevour becomes

circumscribed for the materials are scanty and the discretion

must be exercised with great circumspection.

6. Now before examining whether there are grounds

for granting the petitions, some points canvassed by Sri

Hasmath Pasha require to be dealt with. His argument was

with reference to personal liberty and protection against self

incrimination enshrined in Articles 21 and 20 (3) of the

Constitution of India. Indeed the law relating to bail is

concerned with personal liberty of a person, which is very

sacrosanct. But the question is whether it is absolute, can a

person involved in a criminal case as an accused forcefully

urge for his liberty. In my opinion, the answer to this

question lies in Article 21 itself.

"Article 21. No person shall be deprived of his life or personal liberty except according to procedure established by law".

23 The expression, "except according to procedure established

by law" connotes a meaning inter alia that whenever law is

set into motion for taking punitive action against a person

for having violated law, such person, until found by courts of

law to be not guilty, renders himself disentitled to claim

absolute liberty. If the offences alleged are lethal to society

and detrimental to the interest of the nation, personal liberty

recedes to background. The interest of the nation or the

society is always paramount. The Hon'ble Supreme Court,

has, in the case of Sanjay Chandra vs CBI [(2012) 1 SCC

40] (a decision cited by Sri Hasmath Pasha), referred to its

earlier decision in Vaman Narain Ghiya vs State of

Rajasthan [(2009) 2 SCC 281], where it is held as below :

"33. The concept and philosophy of bail was discussed by this Court in Vaman Narain Ghiya v. State of Rajasthan, (2009) 2 SCC 281, thus:

"6. "Bail" remains an undefined term in CrPC. Nowhere else has the term been statutorily defined. Conceptually, it continues to be understood as a right for assertion of freedom against the State 24

imposing restraints. Since the UN Declaration of Human Rights of 1948, to which India is a signatory, the concept of bail has found a place within the scope of human rights. The dictionary meaning of the expression "bail" denotes a security for appearance of a prisoner for his release. Etymologically, the word is derived from an old French verb "bailer" which means to "give" or "to deliver", although another view is that its derivation is from the Latin term "baiulare", meaning "to bear a burden". Bail is a conditional liberty. Stroud's Judicial Dictionary (4th Edn., 1971) spells out certain other details. It states: "... when a man is taken or arrested for felony, suspicion of felony, indicted of felony, or any such case, so that he is restrained of his liberty. And, being by law bailable, offereth surety to those which have authority to bail him, which sureties are bound for him to the King's use in a certain sums of money, or body for body, that he shall appear before the justices of goal delivery at the next sessions, etc. Then upon the bonds of these sureties, as is aforesaid, he is bailed--that is to say, set at liberty until the day appointed for his appearance."

25 Bail may thus be regarded as a mechanism whereby the State devolutes upon the community the function of securing the presence of the prisoners, and at the same time involves participation of the community in administration of justice.

7. Personal liberty is fundamental and can be circumscribed only by some process sanctioned by law.

Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational right of the police. It must result in minimum interference with the personal liberty of the accused and the right of the police to investigate the case. It has to dovetail two conflicting demands, namely, on the one hand the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence viz. the presumption of innocence of an accused till he is found guilty. Liberty exists in proportion to 26

wholesome restraint, the more restraint on others to keep off from us, the more liberty we have. (See A.K. Gopalan v. State of Madras) (emphasis supplied)

7. In Sanjay Chandra (supra), there is reference to

another judgment in Siddharam Satlingappa Mhetre

[(2011) 1 SCC 694 where it is held : -

"34. More recently, in Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, this Court observed that:

"84. Just as liberty is precious to an individual, so is the society's interest in maintenance of peace, law and order. Both are equally important."

35. This Court further observed : (Siddharam Satlingappa case, SCC p. 737, para 116)

"116. Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case."

(emphasis supplied) 27

8. Also, in the case of NEERU YADAV vs STATE OF

UTTAR PRADESH AND ANOTHER [(2016) 15 SCC 422], the

clear observation of the Hon'ble Supreme Court is as

follows:-

"13. We will be failing in our duty if we do not take note of the concept of liberty and its curtailment by law. It is an established fact that a crime though committed against an individual, in all cases it does not retain an individual character. It, on occasions and in certain offences, accentuates and causes harm to the society. The victim may be an individual, but in the ultimate eventuate, it is the society which is the victim. A crime, as is understood, creates a dent in the law and order situation. In a civilised society, a crime disturbs orderliness. It affects the peaceful life of the society. An individual can enjoy his liberty which is definitely of paramount value but he cannot be a law unto himself. He cannot cause harm to others. He cannot be a nuisance to the collective. He cannot be a terror to the society; and that is why Edmund Burke, the great English thinker, almost two centuries and a decade back eloquently spoke thus:-

28 "Men are qualified for civil liberty, in exact proportion to their disposition to put moral chains upon their own appetites; in proportion as their love to justice is above their rapacity; in proportion as their soundness and sobriety of understanding is above their vanity and presumption; in proportion as they are more disposed to listen to the counsel of the wise and good, in preference to the flattery of knaves. Society cannot exist unless a controlling power upon will and appetite be placed somewhere and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of things that men of intemperate minds cannot be free. Their passions forge their fetters".

9. Therefore with the aid of above observation of the

Hon'ble Supreme Court, the conclusion to be drawn is that

an accused cannot urge for liberty as vociferously as a

person not being an accused; I make it clear that I am not of

the opinion that bail should be denied in all the cases, every 29

case must be examined in the background of the facts and

circumstances and the principles governing grant of bail.

10. Sri. Hasmath Pasha referred to Article 20(3) of the

Constitution of India as according to him requiring the

accused to share their passwords of the electronic gadgets

amounts to self incrimination and violation of 'Right to

Privacy'. He has referred to the decisions of the Supreme

Court in the cases of K.S.Puttaswamy (Retired) and

Another vs Union of India and Another [(2019) 1 SCC 1]

and Nandini Satpathy Vs. P.L.Dani and Another [(1978)

2 SCC 424]. Sri. V.G. Tigadi refuted this argument by

submitting that it is the duty of every person including the

accused to co-operate with the investigating agency. If he

does not co-operate voluntarily, adverse inference has to be

drawn.

11. Certainly this is a point of cogitation as it involves

conflict of interest of an individual protected under Article

20(3) of the Constitution vis-a-vis right of police to

investigate a crime. K.S.Puttaswamy (supra) has 30

discussed the concept of 'Right to Privacy' in the light of

Article 21 of the Constitution, which aspect I have already

dealt with. But Nandini Satpathy (supra), essentially

discusses the implication of Article 20(3); The Supreme

Court while holding that the immunity available under

Article 20(3) of the Constitution extends to the stage of

enquiry or investigation, also holds as below:

"49. The problem that confronts us is amenable to reasonable solution. Relevancy is tendency to make a fact probable. Crimination is a tendency to make guilt probable. Confession is a potency to make crime conclusive. The taint of tendency, under Art. 20(3) and section 161 (1), is more or less the same. It is not a remote, recondite, freak, or fanciful inference but a reasonable, real, material or probable deduction. This governing test holds good, it is pragmatic, for you feel the effect, its guilty portent, fairly clearly".

12. Article 20(3) gives protection to an accused, that

means he cannot be compelled to disclose any information

which may possibly inculpate him. But this Article does not 31

come in the way of volunteering to disclose the information,

even though it is inculpatory. Whether such a disclosure is

voluntary or compulsive, is a question that a court has to

decide during trial, not at the stage of deciding an

application for bail. What if an accused is reluctant to

disclose any information? In such an event, sometimes,

especially a case based on circumstantial evidence,

investigation never sees progress. In many a case, speaking

from experience, voluntary disclosure made by an accused

which is relevant according to Section 27 of the Indian

Evidence Act, has led to chain of circumstances being

completed. Therefore reluctance of the accused to

voluntarily share the passwords, as rightly argued by Sri.

V.G. Tigadi, may lead to draw an adverse inference against

them. To this extent the hands of the Courts are not

fettered.

13. Harking back to the actual scenario projected by

the prosecution, the statement made by B.K.Ravishankar

paved way for registration of a separate FIR. The

prosecution has suspected conspiracy in organizing parties 32

in the hotels and the home stay resorts for facilitating the

trafficking of drugs. Conspiracy requires strict proof. As

argued by Sri. Hasmath Pasha, there must be conspiracy

before the arrest of an accused, and of course this position of

law is settled.

14. On the point of making use of statement of

Ravishankar, if Sri. V.G.Tigadi, referred to Section 10 of the

Indian Evidence Act, Sri. Hasmath Pasha refuted it by

referring to judgment of the Supreme Court in the case of

State of Gujarat Vs. Mohammed Atik and Others [(1998)

4 SCC 351] wherein it is held that post arrest statement

made by a person before the police, whether by way of

confession or otherwise, relating to his involvement in the

conspiracy, would not fall within the ambit of conspiracy.

This point can be better appreciated after conclusion of trial,

it is too early to urge this point now. However in the same

ruling, it is held:

"8. In State of Rajasthan vs. Bhup Singh -

1997 (10) SCC 675 a similar objection raised by the defence was considered in the 33

context of admissibility of a confessional statement under Section 27 of the Evidence Act. In that case, information was elicited by the police from the accused during

investigation in connection with a particular offence and weapon of offence was recovered in consequence thereto. That information became relevant in a subsequent case, but the accused contended that the said information is not admissible in evidence in the subsequent case. This High Court over-ruled the objection on the ground that there is no such prohibition in Section 27 of the Evidence Act. It was observed that "it is immaterial whether the information was supplied in connection with the same crime or a different crime." The same principle applies to a confession recorded under Section 15 of the TADA".

15. The above observation makes it amply clear that

the statement of B.K.Ravishankar cannot be warded off for

registration of FIR in respect of suspected drug racketing.

His statement discloses altogether a different crime not

connected with Crime No.588/2018. The argument that

B.K. Ravishankar's statement was taken after his arrest in 34

the earlier case and therefore hit by Section 25 of the

Evidence Act is a question to be answered by the trial court,

as any observation made now may come in the way of

drawing inferences by the trial court. However, at this stage

there is no impediment for considering his statement as it

discloses involvement of many persons. The question

whether such a disclosure falls within the ambit of Section

27 of the Indian Evidence Act or not is made clear by the

Hon'ble Supreme Court in the case of Mehboob Ali and

Another Vs. State of Rajasthan [(2016) 14 SCC 640] a

case law cited by Sri. V.G. Tigadi. In paras 7 and 15, it is

held:

"7. It was submitted on behalf of the appellants Mehboob Ali and Mohd. Firoz that the confessional statement of accused persons recorded under section 27 of Evidence Act is not admissible as the accused persons were under the custody of Police. No recovery has been made from accused Mehboob Ali and Mohd. Firoz. As such their conviction is illegal and is liable to be set aside. On behalf of the accused Anju Ali and Majhar it has been submitted that recovery from 35

them has not been proved and their conviction is bad in law".

"15. It is apparent that on the basis of the information furnished by accused Mehboob Ali and Firoz and other accused, Anju Ali was arrested. The fact that Anju Ali was dealing with forged currency notes was not to the knowledge of the Police. The statement of both accused has led to discovery of fact and arrest of co-accused not known to police. They identified him and ultimately statements have led to unearthing the racket of use of fake currency notes. Thus the information furnished by the aforesaid accused persons vide information memos is clearly admissible which has led to the identification and arrest of accused Anju Ali and as already stated from possession of Anju Ali fake currency notes had been recovered. As per information furnished by accused Mehboob and Firoz vide memos Exts. P41 and P42, the fact has been discovered by Police as to the involvement of accused Anju Ali which was not to the knowledge of the Police. Police was not aware of accused Anju Ali as well as the fact that he was dealing with fake currency notes which were recovered from him. Thus the statement of the aforesaid accused 36

Mehboob and Firoz is clearly saved by section 27 of the Evidence Act. The embargo put by section 27 of the Evidence Act was clearly lifted in the instant case. The statement of the accused persons has led to the discovery of fact proving complicity of other accused persons and the entire chain of circumstances clearly makes out that accused acted in conspiracy as found by the trial court as well as the High Court."

(emphasis supplied)

16. Therefore the notion that disclosure made under

Section 27 of the Evidence Act is relevant only if physical

object is seized, is dispelled and a disclosure about

complicity of other accused also becomes relevant. To this

extent, at this stage, statement of Ravishankar cannot be

ignored.

17. The next aspect is whether the mandate envisaged

in Section 42 (2) of the NDPS Act is not followed. Sri.

Hasmath Pasha has placed reliance on several rulings viz.,

(1). Kishan Chand vs State of Haryana [2013(2) SCC

502] and (2). Karnail Singh vs State of Haryana [2009

(8) SCC 539]. He has referred to another judgment of the 37

Supreme Court in the case of Sarija Banu @ Janarthani @

Janani and Another vs State Through Inspector of

Police [2004 (12) SCC 266], in support of his argument

that even while deciding application for bail, compliance of

Section 42(2) assumes importance. Section 42(2) has its

own significance; though being very technical provision, it is

found to be essential in the light of rigors of punishment.

But Sri. V.G. Tigadi has produced a document which shows

a report being made by Sri. K.C. Goutham to his next higher

officer. Whether this document establishes actual

compliance or not, is a question to be decided by the trial

court, not at this stage.

18. The next point of argument was with respect to

quantity of the contraband substance. It is true that NDPS

Act provides for graded punishments depending upon the

quantity of the substance seized during raid, and in case of

consumption, the punishment is not so severe. Sri.

Jayakumar S. Patil, Sri. Hasmath Pasha and Sri. Bharat

Kumar have referred to a judgment of the Bombay High

Court in the case of Rhea Chakraborty Vs. The Union of 38

India [Criminal Bail Application (Stamp) No.2386/2020].

According to them, bail was granted to accused in that case

as it was a case of mere consumption and the material on

record did not indicate involvement of commercial quantity

of contraband. Their argument was whenever seized

substance is small quantity and if it is case of mere

consumption, the offence is bailable in accordance with

Schedule II of the Code, and in this background the Bombay

High Court granted bail.

19. The learned counsel have referred to that

paragraph of the judgment which is convenient to them.

There is no denial of the fact that bail was granted to

accused in that case, but it was based on factual

circumstances. In fact what the Bombay High Court has

held is quite contrary to the point urged by learned counsel.

Following the judgment of the Supreme Court in the case of

State of Punjab Vs. Baldev Singh [(1999) 6 SCC 172], it

has been held by the Bombay High Court that irrespective of

quantity of the contraband substance and the length of the

period of imprisonment, all the offences enumerated in NDPS 39

Act are non-bailable. The offence punishable under Section

27(A) of NDPS Act is not quantity specific. Therefore the

argument of the learned counsel cannot be accepted.

20. Sri. V.G.Tigadi has made available the Case Diary.

Since investigation is not yet completed, it may not be proper

to disclose the names of witnesses; suffice it to state here

that it discloses many facets, not only of consumption but

also the purpose of arranging the parties with a view to

facilitating the supply and sale of drugs. It is there in the

diary that accused No.2 on the day of her birthday party,

consumed cocaine with Ravishankar and offered to sell it to

a witness for Rs.5,000/- for a gram. Another witness has

stated to have paid Rs.3,00,000/- to accused no.14 towards

purchase of drug from her. Regular contact with peddlers by

some of the accused is diagrammatically depicted. The

investigating officer has also seized certain quantities of

drugs and electronic gadgets from the accused during

investigation. I find it irrelevant to mention here the

quantity seized in view of observation made above. It is

mentioned that accused no.2 filled water in the bottle when 40

she was asked to give her urine sample. If this is true, it

shows her intention to mislead the investigation. This much

of evidence so far collected by the investigating officer rules

out the argument that a false case has been registered. In

regard to allegation of conspiracy is concerned, it is better

not to express any opinion, as even after completion of

investigation, no opinion can be given as it is a matter of

strict proof. If according to prosecution the parties were

being arranged for facilitating the sale of drug and it would

amount to conspiracy, it should be proved.

21. Two lacunae that Sri. Hasmath Pasha and Sri

Bharat Kumar pointed out were about not obtaining FSL

report and improper collection of scalp hair samples. It is

true that according to the guidelines, the report must be

obtained within 15 days, and if the report is obtained at the

earliest, it rules out manipulation. The hair samples

forwarded to Central Forensic Science Laboratory were sent

back and this is not disputed by Sri. V.G. Tigadi. But what

he submitted was that hair samples were collected prior to

receiving the guidelines, and for this reason CFSL sent back 41

the samples to be resent to it after following the guidelines.

Case diary contains a letter written by CFSL to this effect.

Unless it is established as to how the interest of accused is

substantially prejudiced, no importance can be given to

procedural infractions. In a situation akin to this the

Supreme Court in the case of Superintendent, Narcotics

Vs. R. Paulsamy [(2000) 9 SCC 549] has held:

"6. In the light of Section 37 of the Act no accused can be released on bail when the application is opposed by the public prosecutor unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail. It is unfortunate that matters which could be established only in offence regarding compliance with Sections 52 and 57 have been pre-judged by the learned single Judge at the stage of consideration for bail. The minimum which learned single Judge should have taken into account was the factual presumption in law position that official acts have been regularly performed. Such presumption can be rebutted only during evidence and not merely saying that no document has been produced 42

before the learned single Judge during bail stage regarding the compliance of the formalities mentioned in those two sections."

(emphasis supplied)

22. Sri. Hasmath Pasha has referred to one judgment

of this court in the case of Syed Abdul Ala Vs. Narcotic

Control Bureau [ILR 2003 KAR 474] in support of his

argument that the powers of the High Court are wide enough

to grant bail under Section 439 of the Code despite rigors

contained under Section 37 of NDPS Act. But this ruling

has no application in the present context, for in the cited

decision, bail was sought under medical grounds, which is

not the case here.

23. Sri. Hasmath Pasha has placed reliance on two

more judgments, namely Sujit Tiwari Vs. State of Gujarat

and Another [(2020) SCC Online 84] and Ranjitsing

Brahmajeetsingh Sharma Vs. State of Maharashtra

[(2005) 5 SCC 294]. He tries to garner support from these

rulings in support of his argument that if there is reasonable

possibility of acquittal, bail has to be granted. The principle 43

laid down in these decisions can be well applied after charge

sheet is filed, it is too early to form an opinion about

possibility of acquittal at a time when investigation is still

going on.

24. Section 37 (1)(b)(ii) of NDPS Act clearly envisages

that if the Public Prosecutor opposes the application, and if

the court were to grant bail, it must be satisfied that there

are reasonable grounds for believing that he is not guilty of

such offence and that he is not likely to commit any offence

while on bail. Sri. V.G. Tigadi has referred to three rulings,

namely (1). Union of India Vs. Ram Samujh and Another

[(1999) 9 SCC 429], (2). Serious Fraud Investigation

Office Vs. Nittin Johari and Another [(2019) 9 SCC 165]

and (3). Union of India Vs. Niyazuddin S.K. [(2018) 13

SCC 738]. As held in these decisions, satisfaction of the

ground as envisaged in Section 37 is mandatory. The

discussion made above indicates reasonable grounds about

involvement of the petitioners, who have sought regular bail,

this inference can be drawn even before completion of 44

investigation. Hence bail cannot be granted to accused nos.

2, 4 and 14.

25. Accused nos.1,8 and 10 have sought anticipatory

bail. As argued by Sri. Tomy Sebastian, it is true that in the

statement made by B.K.Ravishankar, it is found that he was

introduced to accused no.2 by accused no.1, i.e.,

Shivaprakash. As regards accused no.10, what is stated by

Ravishankar is that he gave telephone number of accused

no.7 to accused no.9. Then with regard to accused no.8,

Ravishankar has stated that he (accused no.8) had arranged

a birthday party in a resort near Yelahanka and that he

attended that party with accused no.2. Ravishankar has

also stated that accused no.8 made a telephone call to him

and told that his friend namely Santosh wanted drugs.

Therefore it was argued by all three learned counsel for

accused no.1, 8 and 10 that the statement of Ravishankar

does not implicate the said accused of committing any

offence. But the case diary discloses the active participation

of these three accused in the parties where drug was 45

rampantly consumed. They cannot simply claim to be

unaware of drug abuse.

26. Section 438 of the Code sets out the factors that

may be considered for granting anticipatory bail, and the

Hon'ble Supreme Court, in the case of Siddharam

Satlingappa Mhetre (supra) has also laid down certain

guidelines. The applicant for anticipatory bail must make

out a case that his arrest is unreasonable; is intended to fix

him in a false case; and that the allegations against him are

unfounded. If anticipatory bail is sought in the background

of accusation of committing offences having adverse

implication on the society, the discretion must be exercised

with great circumspection to strike balance between personal

liberty of a person and the interest of society. In the case of

P. Chidambaram Vs. Director of Enforcement [(2019) 9

SCC 24], the Supreme Court has held,

"72. We are conscious of the fact that the legislative intent behind the introduction of Section 438 Cr.P.C. is to safeguard the individual's personal liberty and to protect him 46

from the possibility of being humiliated and from being subjected to unnecessary police custody. However, the court must also keep in view that a criminal offence is not just an offence against an individual, rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights -

safeguarding the personal liberty of an individual and the societal interest. It cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant under Article 21 of the Constitution of India".

(emphasis supplied)

27. The Supreme Court in the case of State of

Punjab Vs. Baldev Singh [supra] has noted the malady and

ill effect of drug abuse in the following words:

"3. Drug abuse is a social malady. While drug addiction eats into the vitals of the society, drug trafficking not only eats into the vitals of the economy of a country, but illicit money generated by drug trafficking is often used for illicit activities including encouragement of terrorism. There is no doubt that drug trafficking, trading and its use, which is a global phenomena and 47

has acquired the dimensions of an epidemic, affects the economic policies of the State, corrupts the system and is detrimental to the future of a country. It has the effect of producing a sick society and harmful culture. Anti-drug justice is a criminal dimension of social justice. The United Nations Conventions Against Illicit Trafficking In Narcotic Drugs & Psychotropic Substances which was held in Vienna, Austria in 1988 was perhaps one of the first efforts, at an international level, to tackle the menace of drug trafficking throughout the comity of nations. The Government of India has ratified this convention".

(emphasis supplied)

28. I opine: Youth, the most precious and

indescribable phase of life. The youth are the epitome of

idealism, enthusiasm and courage. Swami Vivekananda

said, "My child, what I want is muscle of iron and nerve of

steel, inside which dwells a mind of the same material as

that of which the thunderbolt is made". Muscles of iron and

nerves of steel simply refer to the physical strength one

should possess. And mind as thunderbolt implies the 48

mental or psychological ability a Man should have. Such

physic and psyche are not only the embodiments of

youthfulness, but also the representation of productive

future. Bothersome brutality dangerously affecting the

young is substance abuse. The ill effect of this substance

not just costs the physical and psychological abilities of an

individual but spreads a dark shadow on the future of the

society. The courts should not remain oblivious of this

malady even while deciding application for bail.

29. Then, as argued by Sri. V.G. Tigadi, if the

petitioners have remained away from interrogation

purposefully to see that traces of drug should vanish from

their scalp hair, it only shows their ulterior motive. It is

recorded in the case diary that accused no.10 - Abhiswamy

@ Abhijit Rangaswamy is likely to fly off India. These being

the circumstances, if anticipatory bail is granted,

investigation may hamper. Of course conditions may be

imposed, but their custodial interrogation to unearth the

hidden evidence appears to be very much essential. Hence I

find no case for granting anticipatory bail. 49

From the foregoing discussion, all the petitions are

dismissed.

Sd/-

JUDGE

ckl/sd