RAGINI DWIVEDI @ GINI @ RAGSversusTHE STATE OF KARNATAKA

264                       [2021]
               SUPREME COURT     1 S.C.R. 264
                              REPORTS                      [2021] 1 S.C.R.


A                    RAGINI DWIVEDI @ GINI @ RAGS
                                        v.
                        THE STATE OF KARNATAKA
                        (Criminal Appeal No. 62 of 2021)
B                             JANUARY 21, 2021
           [ROHINTON FALI NARIMAN, NAVIN SINHA AND
                       K. M. JOSEPH, JJ.]
             Code of Criminal Procedure, 1973: s.439 – Bail application
      rejected by Session Judge applying the provisions of s.37 of the
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      NDPS Act 1985and stating that as a total seizure ‘from all accused’
      was 12 gms cocaine, 55 gm Ganja, 11.5 gms ecstasy tablets and 10
      gms MDMA, no bail could be given to the appellant in present case
      – High Court also rejected bail – On appeal, held: The residence of
      the appellant was searched pursuant to statement made by one ‘BKR’
D     – Pursuant to search made of the appellant’s premises, no drugs at
      all were found – The entirety of the case of the appellant was based
      upon the statement made by ‘BKR’ and the case diary and at the
      highest, it could possibly be said that the appellant consumed certain
      drugs at parties – Appellant was arrested also on a conspiracy
      charge, which the High Court itself found to be tenuous, saying
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      that the said charge has to be proved at the trial – Chargesheet was
      not yet filed – s.37 was wrongly invoked and resultantly bail must
      ensue – Bail granted – Narcotic Drugs and Psychotropic Substances
      Act, 1985 – s.37.
            Disposing of the appeals and writ petition, the Court
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             HELD: Though the appellant was charged with offences
      under Section 21, 21(c), 27A, 27(b) and 29 of the NDPS Act, prima
      facie, if at all any offence has been made out, it could only be
      under Section 27, being the offence of consuming drugs at parties,
      for which the maximum sentence for consumption of certain drugs
G     under Section 27(a) is one year, and under Section 27(b) is six
      months. This being the case, Section 37 was wrongly invoked by
      both the Additional Sessions Judge and by the High Court. [Paras
      8, 9][268-B-C]

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                                       264
     RAGINI DWIVEDI @ GINI @ RAGS v. THE STATE OF                          265
                    KARNATAKA

      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal                    A
No. 62 of 2021.
      From the Judgment and Order dated 03.11.2020 OF the High Court
of Karnataka at Bengaluru in CRLP No. 5389 of 2020.
      Siddharth Luthra, Sr. Adv., Sahil Bhalaik, Tushar Giri, Ms. Sakshi
Sharma, Md. Tahir, Md. Akhil, Ayush Kaushik, Ms. Ankita Tiwari, Lakshy     B
Mehta, Mayank Jain, Parmatma Singh, Madhur Jain, Advs. for the
Appellant.
      Tushar Mehta, SG, Shubhranshu Padhi, Ashish Yadav, Rakshit Jain,
Vishal Banshal, Advs. for the Respondent.
                                                                           C
      The Judgment of the Court was delivered by
      R. F. NARIMAN, J.
      SLP (CRL.) NO. 5998 OF 2020
      1. Leave granted.
                                                                           D
       2. We have heard Mr. Siddharth Luthra, learned senior counsel
appearing for the appellant(s) as well as Mr. Tushar Mehta, learned
Solicitor General at some length. It transpires that the appellant is an
actress whose residence was searched pursuant to a statement made
by one B.K.Ravishankar on 03.09.2020. The search of the premises of
the appellant yielded the following items:-                                E

      “1. One black colour Samsung Note 10 mobile phone.
      2.    Blue colour Samsung Galaxy Note 9 mobile phone.
      3.    Gold colour Apple mobile phone.
                                                                           F
      4.    Sandisk pendrive – 32 GB
      5.    Sandisk pendrive – 8 GB
      6.    A wooden box written on that ‘Organic smoke menthol
            free tobacco’. Inside that, 6 cigarettes and 3 cigarette
            strips.”                                                       G
       3. Thereafter, a complaint was filed by Sh. K.C. Goutham,
Assistant Commissioner of Police, ANW, CCB, Bengaluru, on 04.09.2020,
in which the following statement was made :-
        “In connection with the above subject, I, K.C. Goutham,
      serving as Assistant Commissioner of Police, CCB, Narcotics          H
266     SUPREME COURT REPORTS                       [2021] 1 S.C.R.


A     Control Bureau, Bangalore City would like to request you that,
      as per the verified information from my known sources, a well-
      organized network was involved in illegal activities, made
      financial transactions and gained illegal money by getting
      drugs from different States that is from Goa, Mumbai, Punjab,
      Andhra Pradesh, Kerala and even from foreign countries and
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      supplied the same in Five Star Hotels of Bangalore, Pubs,
      organised Dance party, Music programs, in certain Farm
      Houses to the Industrialists, Celebrities, a few Actors and
      Actresses, DJs, Software Employees and others who attend to
      parties at above places. I have taken up investigation in this
C     regard. During the investigation, information about the said
      acts has been collected from B.K. Ravishankar. In the said
      information, the following persons with a secret design have
      organised parties in different parts of the Bangalore City,
      consumers were called in and drugs were supplied to them
      through drug peddlers and the consumers have consumed
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      drugs.
      1) Shivaprakash, 2) Ragini Dwivedi, 3) Veeren Khanna, 4)
      Prashanth Ranka, 5) Vaibhav Jain, 6) Adithya Alva, 7) Lume
      Pepper @Simon of Decor City of Senegal Country, 8)
      Prashanth Raju, 9) Ashwin @ Boogi, 10) Abhiswamy, 11)
E     Rahul Tonse, 12) Vinay and others.
      The said persons were organising dance and music parties in
      different parts of the Bangalore City, and supplying and
      consuming drugs like Ganja, Ecstasy Pills, Cocaine, MDMA,
      LSD etc. along with drinks. There is information about the
F     supplying of drugs earlier also.
      On 16.06.2019 Ravishankar has sent a message through his
      mobile to the peddler Loom Pepper @ Simon’s mobile No.
      6385248582 texting as “Get a very very good stuff” and in
      another message texting as “2G Celebrity Stuff”.
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      On 12.04.2020 Ravishankar sent message to peddler Loom
      Pepper @ Simon’s mobile No. 9902031540 texting as “Gave
      me Less than 1 Gram”, for this the peddler on 13.04.2020 at
      06.50 hours (GMT) has texted to the Ravishankar mobile No.
      9880404604 as “No O is because it is in a Rock Form That is
H     why is complete 1G”.
     RAGINI DWIVEDI @ GINI @ RAGS v. THE STATE OF                            267
             KARNATAKA [R. F. NARIMAN, J.]

      Later on 23.06.2020 the following Whatsapp Chat are                    A
      exchanged between Ravishankar and his friend Prashanth
      Ranka 1) Dont call to peddlers, 2) Nope not having it from
      long time, 3) Big time tracking is going on, 4) wht hpnd, 5)
      ohkkk, 6) Sandeep Patil sir, 7) How come bro, 8) ohkkk, 9)
      came to know yesterday from sources, 10) thank u very much,
                                                                             B
      11) Take care. Like these, there are many more Whatsapp
      messages and code words have been used in these messages.
      Therefore, it is requested to take suitable legal action under
      N.D.P.S. Act against 1) Shivaprakash, 2) Ragini Dwivedi, 3)
      Veeren Khanna, 4) Prashanth Ranka, 5) Vaibhav Jain, 6)
      Adithya Alva, 7) Lume Pepper @Simon of Decor City of                   C
      Senegal Country, 8) Prashanth Raju, 9) Ashwin @ Boogi,
      10) Abhiswamy, 11) Rahul Tonse, 12) Vinay and others. I am
      enclosing along with this a copy of the Statement given by
      B.K.Ravishankar and copy of the Whatsapp messages.”
      4. Pursuant to this complaint, the appellant has been arrested and     D
has been in jail from 04.09.2020.
       5. On an application made by the appellant for bail, the Additional
City Civil and Sessions Judge, by an order dated 28.09.2020, rejected
the aforesaid application, applying the provisions of Section 37 of the
NDPS Act and stating that as a total seizure ‘from all accused’ was 12       E
gms Cocaine, 55 gms Ganja, 8 ecstasy tablets, 11.5 gms ecstasy tablets
and 10 gms MDMA, no bail could be given to the appellant in the present
case.
      6. The High Court, by the impugned Judgment dated 03.11.2020,
relying upon the statement made by B.K.Ravishankar made under                F
Section 67 of the NDPS Act, the case diary and the parameters laid
down in Section 37 of the NDPS Act, also rejected bail.
      7. Having been taken through the entire proceedings by Sh.
Siddharth Luthra, a few things become apparent:-
                                                                             G
      i) that pursuant to the search made of the appellant’s premises, no
drugs at all were found;
      ii) that the entirety of the case of the appellant is based upon the
statement made by B.K.Ravishankar and the case diary and at the
highest, it could possibly be said that the appellant consumed certain
drugs at parties; and                                                        H
268             SUPREME COURT REPORTS                            [2021] 1 S.C.R.


A           iii) What is important to note is that the appellant has been arrested
      also on a conspiracy charge, which the High Court itself found to be
      tenuous, saying the said charge needs to be proved at the trial. It is also
      noted that till date, no chargesheet has been filed.
             8. Though the appellant has been charged with offences under
B     Section 21, 21(c), 27A, 27(b) and 29 of the NDPS Act, prima facie, if at
      all any offence has been made out, it could only be under Section 27,
      being the offence of consuming drugs at parties, for which the maximum
      sentence for consumption of certain drugs under Section 27(a) is one
      year, and under Section 27(b) is six months.
C            9. This being the case, it is clear that Section 37 was wrongly
      invoked by both the Ld. Additional Sessions Judge and by the High Court.
      With Section 37 out of the way, this is a case in which bail must ensue,
      as a result of which, we set aside the Judgment of the High Court and
      enlarge the appellant (Ragini Dwivedi @Gini @Rags) on bail, subject to
      conditions to be imposed by the trial court.
D
           10. Any observations made in this Judgment will not be used to
      hamper investigation and obviously, will not be used at the trial.
             11. In view of the above, the appeal is allowed.
             SLP (CRL.) NO. 6185 OF 2020
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             12. Leave granted.
             13. The Judgment rendered above in SLP (Crl.) 5998 of 2020
      shall also apply in this case as well. The appellant (Shivaprakash) is
      granted anticipatory bail. In the event of his arrest in connection with
      Crime No. 588/2018, registered at Police Station Banasawadi, Bengaluru,
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      he shall be released on bail to the satisfaction of the arresting officer.
      The impugned Judgment of the High Court is set aside and the appeal is
      allowed.
             W.P. (Crl.) 384 of 2020
G            14. In view of the Judgment passed in the above cases, this writ
      petition has become infructuous and is dismissed as such.


      Devika Gujral                                   Matters and appeals disposed of.


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