ORDER
1. The petitioner who has been arrayed as accused 2 in CC No. 189 of 1999 on the file of the Special Judge, Bangalore for offences under Section 8(c) read with Sections 21, 27 and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “N.D.P.S. Act’) is seeking quashing of the proceedings on the ground that no offence had been made out against him.
2. The petitioner’s case is that he is a resident of Coimbatore and was running a Hotel in Partnership with one Salim of Trivandram. The petitioner claims that on the dissolution of the partnership, the petitioner was not put in possession of a five storied building worth 75 lakhs and on that account he is being implicated by his partner Salim in various cases including the one in question.
3. The first accused, Aji Kumar and Mohammed, the third respondent are prosecuted along with the petitioner in respect of an incident that took place on 27-6-1999. It is stated that on 27-6-1999 accused 1 and accused 3 and another person came from Kerala to Bangalore and stayed in a hotel. The third accused is alleged to have procured 1.78 kg of Heroin and handed it over to the first accused at about 2 p.m. Thereafter accused 1 and 3 moved to a room bearing No. 94 in Hotel Hindusthan, where the first accused was given a ticket to travel to Coimbatore with instruction to deliver the contraband to the petitioner. However, before the plan could be executed, the police raided the premises and the contraband was seized. The statement of the first accused was recorded on 27th and 28th July, 1999 along with the necessary mahazar. During interrogation, the first accused is alleged to have implicated the petitioner with having received Heroin on earlier occasions. There was also a raid on the house of the petitioner, where no incriminating articles were recovered. The allegations made against the petitioner consists of the statement of the first accused which cannot be evidenced in the case. Likewise, the allegations made in the complaint that the petitioner got delivery of Heroin to his man from accused 1 by paying Rs. 5,000/-, each time, during June 1999 and at Coimbatore on 15-7-1999 and he was to take delivery of the same from accused 1-Aji Kumar on 27-7-1999 and is, therefore, guilty of the offence under Section 8(c) read with Sections 21, 27-A and 29 of the N.D.P.S. Act.
4. The learned Counsel for the petitioner has sought to contend that other than the evidence of the first accused implicating the petitioner, the complainant has not been able to secure any evidence regarding the offences alleged and therefore, the issue of process to the accused-petitioner is an abuse of the process of the Court and should be quashed by resorting to Section 482 of the Cr.P.C.
5. On behalf of the respondent, it is contended that the petitioner has not co-operated in the investigation of the offence and the petitioner has not responded to the departmental summons and has avoided appearing before the respondents by pleading one pretext or the other. The respondents were obliged, in the circumstances, to file a complaint under Section 200 of the Cr. P.C., with a view to avoiding the consequences of Section 167 of the Cr. P.C., and therefore, the respondents would be entitled to nevertheless question the petitioner in accordance with N.D.P.S. Act, with a view to arriving at the truth and therefore this is not a fit case where jurisdiction under Section 482 of the Cr. P.C. should be exercised to quash the proceedings.
6. In support of their case, the petitioners sought to rely upon a decision in Suresh Budharmal Kalani alias Pappu Kalani v State of Maharashtra, that a confession of an accused, who has been discharged, is not admissible against a co-accused and a Court is not justified in taking into consideration such confession for framing charges against the co-accused on the ground that the prosecution could examine him as a witness for establishing the acts disclosed in his confession, under Section 30 of the Evidence Act. In this case, there is admittedly a statement recorded of the first accused stating that the contraband Heroin was sought to be delivered to the second accused or his designated representative. In the instant case, the first accused, the petitioner and the third accused are all sought to be tried jointly. The Supreme Court has in fact observed that under Section 30 of the Evidence Act, confession of an accused is relevant and is admissible against a co-accused if both are jointly facing trial for the same offence. If however, the accused is discharged from the case, and was not facing the trial with the accused, then a confession cannot be used against the co-accused is the observation in the case. Apparently, the decision referred to above, at this stage, would not be of any assistance in demonstrating that the allegations in the complaint would not constitute any offence at all against the petitioner.
7. If the statement of the first accused, who is sought to be tried jointly with the petitioner, is proved in accordance with law, it is a matter for the Court to appreciate the evidence as to whether the offences alleged are established or not. In these circumstances, I am of the opinion that at this stage, there is no reason to arrive at a conclusion that the issuance of the process against the petitioner should be regarded as constituting abuse of the process of law.
8. Indeed, the petitioner was obliged to honour the order of the Trial Court and seek bail in accordance with law before he sought to move this petition. The evidence produced in the case would show that nonbailable warrant has been issued against the petitioner and he has apparently not moved the Trial Court for bail or for recall of the nonbailable warrant against him. A person who seeks the indulgence of examination of a case under Section 482 of the Cr. P.C., must demonstrate that he is willing to abide by the law, and not evade the law, for purposes of quashing the proceedings initiated against him. Even on this score, the petitioner has to fail.
9. Under the N.D.P.S. Act, the petitioner to whom notices were issued to appear and give a statement is obliged to honour the notice. What statement he gives before the officers is a different matter; but the person like the petitioner herein cannot seek to evade the departmental notice, which is once again demonstrative of conduct inconsistent with respect for law. It has to be noticed that answers given by the petitioner in response to the notice are entitled to be used for further investigation to bring home the truth, which may be even favourable to the petitioner. The petitioner’s conduct in not obeying the notice, in ray opinion, would also be a circumstance to be taken note of in considering the application under Section 482 of the Cr. P.C.
10. The contention of the petitioner that he is being falsely implicated at the instance of his erstwhile partner Salim who is alleged to have got several cases filed against him, is not a circumstance, in any event, at this stage, to quash the proceedings against the petitioner. This is essentially a defence that is required to be established in the case.
11. None of the circumstances alleged in support of the case of the petitioner for quashing the proceedings by resorting to Section 482 of the Cr. P.C., can hold water. Having regard to the fact that the power under Section 482 of the Code is to be exercised in the rarest of rare cases and having regard to the fact that alternative procedure is available to the petitioner to establish his defence, and having regard to the conduct of the petitioner in seeking to evade notices issued by the officers under the N.D.P.S. Act, I am of the opinion that the petitioner’s claim for quashing the proceedings in C.C. No. 189 of 1999 on the file of the Sessions Judge, Bangalore City Civil Court is misconceived and is rejected and the petitioner shall surrender before the Court and seek bail in accordance with law.