Kerala High Court
Binoy Viswam vs State Of Kerala on 6 February, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
CRL.MC NO. 238 OF 2024
CRIME NO.467/2023 OF AMBALAVAYAL POLICE STATION, WAYANAD
AGAINST THE ORDER/JUDGMENT CC 906/2023 OF JUDICIAL MAGISTRATE
OF FIRST CLASS ,SULTHANBATHERY
PETITIONER/ACCUSED NOS. 1 TO 3 :
1 BINOY VISWAM, AGED 28 YEARS
S/O.HARIDAS, MANNARAKOD HOUSE,
KANNUR POST, PALAKKAD - 678 701.
2 AKHIL, AGED 28 YEARS
S/O.GOPINATH, KAVIL HOUSE,
KINASSERI POST, PALAKKAD - 678 701.
3 NAVANEETH, AGED 28 YEARS
S/O.KUNHU, THAZHATHEPURA HOUSE,
KANNUR POST, PALAKKAD - 678 701.
BY ADVS.TONY THOMAS (INCHIPARAMBIL)
P.THOMAS GEEVERGHESE
AMRUTHA K.P.
SRADHA MOHAN
RESPONDENT/STATE AND COMPLAINANT :
1 STATE OF KERALA
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 031.
2 STATION HOUSE OFFICER
AMBALAVAYAL POLICE STATION,
AMBALAVAYAL, WAYANAD - 673 593.
SMT. SREEJA V. (PP)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
06.02.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC NO. 238 OF 2024
2
BECHU KURIAN THOMAS, J
......................................................
Crl.M.C. No.238 of 2024
...................................................
Dated this the 6th day of February, 2024
ORDER
Petitioners are accused Nos.1 to 3 in C.C.No.906/2023 on the files
of the Judicial First Class Magistrate Court, Sulthanbathery; arising
out of Crime No.467/2023 of Ambalavayal Police Station.
Petitioners are alleged to have smoked a 'beedi' containing Ganja
on 01.07.2023 and thereby committed the offences punishable
under Section 27(b) of the Narcotic Drugs and Psychotropic
Substances Act, 1985.
2. The learned counsel for the petitioner, submitted that the alleged
'beedi' containing ganja has not been subjected to any forensic
analysis, and therefore, there cannot be any successful prosecution.
It was submitted that the continuance of the prosecution against
the petitioners in such circumstances is an abuse of the process of
the court. The learned counsel relied upon the judgment of this
Court in Crl.M.C.No.9931/2023 to substantiate the aforesaid
contentions.
CRL.MC NO. 238 OF 2024
3. The learned Public Prosecutor, submitted that though the 'beedi'
was not subjected to any chemical analysis, still, without chemical
analysis, it is possible to prove that the petitioners had consumed
the narcotic drug on the date of their arrest, and hence, the
inherent powers ought not be invoked.
4. In Crl.M.C.No.9931/2023, this Court has already observed that the
continuation of the prosecution in the absence of an analysis report
under the NDPS Act is an abuse of the process of the court. The
principles referred to in the said case apply squarely to the facts of
the present case. A perusal of the prosecution allegation in the
present cased indicates that petitioners allegedly threw away the
'beedi' containing ganja, and a burnt 'beedi' alone was recovered
from the ground. Though the question whether the burnt 'beedi'
contained ganja or not, is a matter which falls within the realm of
disputed facts, in the absence of any chemical report, the court
cannot decide that the 'beedi' contained ganja.
5. Since, concededly, the 'beedi' seized from the ground was not
subjected to any chemical analysis, it will be impossible to prove
to the prosecution that it contained ganja. Therefore, continuation
CRL.MC NO. 238 OF 2024
of the prosecution in C.C.No.906/2023 on the files of the Judicial
First Class Magistrate Court, Sulthanbathery; is an abuse of the
process of the court and is liable to be set aside.
6. Accordingly, all proceedings in C.C.No.906/2023 on the files of the
Judicial First Class Magistrate Court, Sulthanbathery; shall stand
quashed.
The Crl.M.C.is allowed as above.
sd/-
BECHU KURIAN THOMAS
JUDGE
AMV/06/02/2024
CRL.MC NO. 238 OF 2024
PETITIONER ANNEXURES
ANNEXURE.A1 CERTIFIED COPY OF THE FIR IN CRIME
NO.467/2023 OF AMBALAVAYAL POLICE STATION,
DATED 01-07-2023.
ANNEXURE.A2 CERTIFIED COPY OF THE FINAL REPORT IN
CRIME NO.467/2023 OF AMBALAVAYAL POLICE
STATION, DATED 02-07-2023.
TRUE COPY
