IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS TUESDAY, THE 6^TH 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:

BECHU KURIAN THOMAS, J ......….............................................

Crl.M.C. No.238 of 2024 …................................................

Dated this the 6^th 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.

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 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 APPENDIX OF CRL.MC 238/2024 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-