Kerala High Court
Adarsh A. Nair vs State Of Kerala on 13 November, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
2024:KER:88097
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 13TH DAY OF NOVEMBER 2024 / 22ND KARTHIKA, 1946
CRL.MC NO. 8131 OF 2024
CRIME NO.985/2023 OF Infopark Police Station, Ernakulam
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.570 OF 2023 OF
JUDICIAL FIRST CLASS MAGISTRATE COURT, KAKKANAD
PETITIONER/ACCUSED:
ADARSH A. NAIR
AGED 23 YEARS
S/O, AJEETHKUMAR, SAHYADRI HOUSE, NARIYAPURAM P.O,
VALLIKODE, PATHANAMTHITTA,, PIN - 689648
BY ADVS.
M.B.SHYNI
RAJESH KUMAR R.
V.R.ANILKUMAR
SARAFUDHEEN T.
ELDHOSE JOY
AJITH P.C.
RESPONDENT/COMPLAIANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
PIN - 682031
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
13.11.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC NO. 8131 OF 2024 2
2024:KER:88097
BECHU KURIAN THOMAS, J
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Crl.MC No. 8131 of 2024
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Dated this the 13th day of November, 2024
ORDER
Petitioner has invoked the jurisdiction under Section 528 of the
Bharatiya Nagarik Suraksha Sanhita, 2023, to quash all proceedings
against him.
2. Petitioner is the sole accused in C.C No.570/2023 on the files
of the Judicial First Class Magistrate Court, Kakkanad, arising out of Crime
No.985/2023 of Infopark Police Station, Kakkanad, registered for the
offences punishable under Section 27(b) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short 'N.D.P.S Act').
3. According to the prosecution, on 24.06.2023 the accused was
found smoking a beedi and on seeing the police, he threw it and
attempted to run away. Thereafter, since, the Detecting Officer smelt
ganja in the air, he questioned the accused and seized the beedi, and
registered an FIR alleging the offences mentioned above. Subsequently,
after completing the investigation, a final report has been filed alleging
commission of the offences.
4. The issue that arises for consideration is whether the sense of
smell of the investigating officer is sufficient to charge an accused with
the offence under Section 27(b) of the N.D.P.S Act.
2024:KER:88097
5. I have heard the learned counsel for the petitioner as well as
the learned Public Prosecutor.
6. In a decision in Ibnu Shijil v. State of Kerala [2024 (5) KHC
476], this Court has already held that the olfactory ability of an
investigating officer is not sufficient for initiating proceedings under the
Narcotic Drugs and Psychotropic Substances Act against an accused.
7. In the instant case, the beedi allegedly containing ganja was
seized by the investigating officer and was produced before the court.
However, no forensic examination has been conducted. On the other
hand, the final report alleges that the beedi smoked by the accused
contains ganja.
8. In the decision in Anurag Shaji v. State of Kerala [2023
KHC 9406], this Court has observed that, when no material has been
collected by the investigating officer to substantiate that the accused
consumed narcotic drugs, continuing the prosecution is an abuse of
process of court. However, it is seen that the beedi smoked by the
accused has already been produced before the Court and therefore, it
cannot be stated that no materials are collected by the investigating
officer.
9. Notwithstanding the above, since the beedi has not been
subjected to any chemical analysis, the entire proceedings has been
initiated on the basis of the olfactory sense of the investigating officer.
Such a procedure is not permissible under law. It is necessary that
inorder to bring home the guilt of an accused, the contraband seized or
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alleged to have been consumed must have been subjected to forensic
analysis, or atleast medical evidence ought to have been adduced to
prove the nature of contraband consumed by the accused. Such a
material is lacking in the final report. Hence, I am satisfied that this is a
fit case where the inherent jurisdiction of this Court can be exercised to
quash the proceedings.
10. Accordingly, the proceeding in C.C No.570/2023 on the files
of the Judicial First Class Magistrate Court, Kakkanad, arising out of Crime
No.985/2023 of Infopark Police Station, Kakkanad, is hereby quashed.
The Criminal Miscellaneous Case is allowed.
Sd/-
BECHU KURIAN THOMAS
JUDGE
AJ
2024:KER:88097
PETITIONER ANNEXURES
Annexure 1 THE TRUE COPY OF THE FIR IN CRIME NO.985/2023
OF INFOPARK POLICE STATION
Annexure 2 TRUE COPY OF THE FINAL REPORT IN CRIME NO
NO.985/2023 OF INFOPARK POLICE STATION
