Point of Law: NDPS Act – Conviction set aside - Sub-Section(3) of Section 161 Cr.P.C. would provide that if the Police Officer reduces the statement of a witness into writing, he shall make a separate note and true record of the statement of the person whose statement he records. It is elementary that nobody can anticipate that a particular witness would give a particular type of statement

ORDER :

1. The petitioner is the sole accused in S.T.No.398/2020 on the files of the Court of the Judicial Magistrate of First Class-II, Attingal. The offence alleged is punishable under Section 27(b) of the Narcotic Drugs and Psychotropic Substances Act (for short 'the NDPS Act').

2. The prosecution allegation as revealed in the final report is that on 24.01.2020 at about 2.30 a.m., the petitioner was found consuming narcotic drug in contravention of the provisions of the NDPS Act.

3. The petitioner in this Crl.M.C. prays for quashing Annexure-III final report and further proceedings against the petitioner in S.T.No.398/2020 on the files of the court below.

4. Heard the learned counsel for the petitioner and the learned Senior Public Prosecutor. I also perused the case diary and the lower court records.

5. The learned counsel for the petitioner has argued that since the conjoint reading of the First Information Statement, mahazar, the statements of witnesses recorded under Section 161 Cr.P.C. and the final report would reveal that the prosecution is not having a consistent case, Annexure-III final report and further proceedings against the petitioner cannot be sustained. It has been further argued by the learned counsel for the petitioner that since the records including the mahazar, the First Information Statement and the statements of witnesses under Section 161 Cr.P.C. were prepared in printed formats by filling up the blank spaces, it has to be held that the prosecution case is artificial and consequently Annexure-III final report and further proceedings against the petitioner are liable to be quashed.

6. As per Annexure-I mahazar, the Sub Inspector of Police and party, during the course of patrolling, found the petitioner in a suspicious condition. When the police party intercepted the petitioner, they were satisfied that the petitioner was using some kind of narcotic drug. Therefore, he was arrested. It is further stated in Annexure-I mahazar that no narcotic drug was found in possession of the petitioner at the relevant time.

7. Annexure-II is the First Information Report. The Sub Inspector of Police, Kazhakkuttam is the informant. The information recorded by the Sub Inspector of Police himself is the First Information Statement, which is annexed to Annexure-II First Information Report.

8. As per the First Information Statement, when the Sub Inspector of Police and party reached the place of occurrence, they saw the petitioner smoking a beedi. When intercepted, the Sub Inspector of Police and party were satisfied that the said beedi was a ganja beedi. The said beedi was seized by the Sub Inspector of Police as per a mahazar.

9. The statement of the Assistant Sub Inspector of Police Shri.Binukumar and the statement of the Civil Police Officer Shri.Sujith were recorded in connection with this case. In the said statements, the said witnesses stated that during the course of patrol duty, when the police party reached the place of occurrence, they saw the petitioner using some type of liquid narcotic drug. The Sub Inspector of Police arrested the petitioner and thereafter he prepared a mahazar in which the witnesses signed.

10. Annexure-III final report would show that the petitioner was found using narcotic drug at the relevant time. It appears from Para 5 of statement dated 18.12.2020 filed by the Sub Inspector of Police that the police party was satisfied due to the strong smell of ganja emanating from the breath of the petitioner that the petitioner was smoking ganga. It was further stated in the said para that when the police party approached the petitioner, the petitioner threw away the cigarette possessed by the petitioner.

11. This Court summoned the Sub Inspector of Police concerned to the court and asked him as to whether he had sent the ganja beedi for chemical analysis. Then he replied that no such ganja beedi was seized from the petitioner as stated in the First Information Statement. The statement filed by the Sub I