Point of Law : Transactions that attract the offence under section 193 of the IPC and the other offences not covered under section 195 of Cr.P.C are inseparable.

ORDER :

These Crl.M.Cs are filed by the accused in C.C. No 811/2014, on the files of the Judicial Magistrate of First Class-I, Nedumangad. The aforesaid Calendar Case arises from Crime No. 215 of 1994 of Vanchiyoor Police Station, which was registered for the offences punishable under sections 120B,420,201,193 and 217 read with 34 of the Indian Penal Code. Crl.M.C. No. 5261/2022 is filed by the 2nd accused and Crl.M.C. No. 7805/2022 is filed by the 1st accused therein. The 2nd respondent is the defacto complainant. The prayer sought in these Crl.M.Cs is to quash the final report submitted therein and further proceedings pursuant to it.

2. The facts which led to the registration of the aforesaid crime are as follows:

An Australian national, named Andrew Salvatore, was a passenger of Indian Airlines Flight I.C. 168 from Thiruvananthapuram to Mumbai on 04.04.1990. While frisking at the Thiruvananthapuram Airport, he was found in possession of two packets containing 55 gms and 6.6 gms of charas, which were kept concealed in the pocket of his underwear. Thereafter, the said person, along with the seized articles as well as his personal belongings, was entrusted with the custody of Valiyathura Police Station, and in respect of the same, Crime No 60/1990 was registered for the offence punishable under section 20(b)(ii) of the Narcotics Drugs and Psychotropic Substances Act (NDPS Act).

3. The articles seized, including the underwear of the accused therein, were produced as Thondi before the Judicial First Class Magistrate's Court- II, Thiruvananthapuram. The 1st accused herein was the Thondi Clerk, and the articles were entrusted in his custody. The 2nd accused herein was a lawyer practising in Thiruvananthapuram and was the junior lawyer who appeared for the accused, the Australian national. While arresting the accused therein, several articles, including his personal belongings, also were seized by the police and produced before the court.

4. On 17.07.1990, an application was submitted on behalf of the accused therein to release his personal belongings, which was allowed by the court. Accordingly, the aforesaid articles were released, and the same was collected by the 2nd accused herein, the junior lawyer of the counsel, who appeared for the said Australian citizen. However, even though the release ordered by the court was the personal belongings of the accused in the said case, while releasing the same, the underwear, from which the contraband articles seized, was also released by the 1st accused herein, the Thondi clerk and the same was collected by the 2nd accused herein. On 5/12/1990, the 2nd accused herein returned the said underwear to the 1st accused herein, and later the same was forwarded to the Sessions Court as the case was committed to the Sessions Court.

5. During the trial, the said underwear was marked as MO2, and the specific defence taken by the accused therein was that, MO2 was too small for him. However, the practical test was not conducted by the trial court. After the trial, the accused therein was found guilty by the Sessions Court, and he was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rupees one lakh. Challenging the said conviction and sentence Crl.A No.20/1991 was filed before this Court, and the said contention was reiterated. During the hearing of appeal, a practical test was ordered to be conducted, and it was found that the MO2 was not that of his size.

6. Accordingly, the accused therein was acquitted vide judgment dated 5.02.1991, but it was observed that there is a strong possibility of MO2 being planted in an attempt to wriggle out of the situation. Therefore, an inquiry into the matter was suggested. Based on the same, the Vigilance Officer of this Court conducted an investigation and a report in this regard was submitted, highlighting the necessity of a detailed investigation into the matter. Consequently, Office Memorandum dated 27.09.1994 was issued by this court requ