IMPORTANT POINT
The absence of contraband recovery is critical for establishing guilt under the NDPS Act, and video evidence alone is insufficient for prosecution.

ORDER :

1. Petitioners are accused Nos. 4 and 5 in C.C. No. 17/2023 on the files of the Additional Chief Judicial Magistrate Court (Economic Offences), Ernakulam, which arise out of Crime No. 1499/2021 of Ernakulam Town South Police Station. Petitioners seek to quash the aforesaid proceedings under Section 482 Cr.P.C.

2. Petitioners are alleged to have committed offences under Sections 27(a) and 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’). Prosecution alleged that, on 06.09.2020, the accused had consumed a narcotic drug and video graphed the said act, thereby committing the offences alleged.

3. I have heard Sri. Justus, the learned counsel for the petitioners and Sri. Noushad K.A. the learned Public Prosecutor.

4. The edifice of the prosecution in the instant case is built upon a video-graph recovered during the search of an apartment. Even if the allegations in the final report are assumed to be true, a question arises whether an offence under the NDPS Act can be said to have been committed by the accused.

5. It is the admitted case that the contraband allegedly consumed by the petitioners was not recovered during the search. The allegations if assumed to be correct, will still not be sufficient for the prosecution to prove the nature of contraband or whether what was shown in the video-graph was a narcotic drug. In the absence of any material to prove that what was consumed by the accused, as shown in the video-graph was a narcotic drug, I am of the view that no purpose would be achieved by continuing the prosecution.

6. In this context, it is appropriate to refer to the decisions of this Court in Crl. M.C. No. 1729/2022, Crl. M.C. No. 995/2022 and Crl. M.C. No. 2367/2022, wherein, in similar circumstances, a learned Single Judge of this Court had held that in the absence of seizure of a contraband, guilt under the NDPS Act cannot be proved through circumstantial evidence or through the visuals in a mobile phone. The challenge against one of the judgments mentioned above, i.e. Crl. M.C. No. 995/2022 was, in fact, taken up before the Supreme Court in Special Leave Petition as S.L.P. No. 5493/2022, which was dismissed. In view of the above, no purpose would be achieved by continuing the prosecution against the petitioners.

7. It is also noticed from Annexure-A1 charge sheet that the information regarding the consumption of contraband was revealed, while the second accused was questioned in connection with another crime. As noticed from the decision in Syju Thankachan vs. State of Kerala, 2024 KHC Online 1064, the statement made by the co-accused to the Police officer cannot be treated as a material connecting the petitioner with the crime, especially considering the offence under Section 27(B) of the NDPS Act. Therefore, I am of the view that no purpose would be achieved by continuing the prosecution.

8. Accordingly, I quash all further proceedings against the petitioners in C.C. No. 17/2023 on the files of the Additional Chief Judicial Magistrate Court (Economic Offences), Ernakulam.

9. Criminal miscellaneous case is allowed as above.