N THE HIGH COURT OF KERALA AT ERNAKULAM 2023/KER/29466 PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TH WEDNESDAY, THE 24 DAY OF MAY 2023 / 3RD JYAISHTA, 1945 CRL.MC NO. 3922 OF 2023 AGAINST CRL.M.P. NO.629/2023 IN SC NO.517/2022 ON THE FILE OF THE 1ST ADDITIONAL SESSIONS COURT, THRISSUR CRIME NO.268/2021 OF OLLUR POLICE STATION PETITIONER/2ND ACCUSED :

SUNDARAN AGED 61 YEARS S/O RAGHAVAN, KAILATHUVALAPPIL HOUSE, THEMALIPPADAM DESOM, EDAKUNNI VILLAGE, THRISSUR DISTRICT, PIN – 680306 BY ADV RAJESH CHAKYAT RESPONDENT/COMPLAINANT-STATE :

1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 2 THE SUB INSPECTOR OF POLICE OLLUR POLICE STATION, THRISSUR DISTRICT, PIN - 680360 SRI VIPIN NARAYAN, SR PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON

24.05.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

“CR”

ORDER

The petitioner herein is the 2nd accused in S.C. No.517/2022 on the file of the First Additional Sessions Court, Thrissur. In the aforesaid case, he is accused of having committed the offences punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, “the Act”). The challenge in this petition is mounted against the order dated 05.04.2023 in Crl. M.P.No. 629/2023, by which the application filed by the learned Public Prosecutor to produce and mark the photocopy of a document was allowed.

2. Before delving into the merit of the order impugned, short facts which led to the passing of the order are required to be stated:

The prosecution allegation is that the petitioner was acting as the caretaker of the house owned by a certain Vincent. The allegation is that the 1st accused, for the purpose of sale, procured 27.530 kg of Ganja from Tamil Nadu, and the same was entrusted to the petitioner. The petitioner is alleged to have kept the contraband on the Veranda of the house. Based on source information, a search was conducted, and the contraband articles were allegedly seized.

3. Trial commenced, and during the fag end of examination of the detecting officer, who was being examined as PW1, an application was filed by the prosecution to produce a photocopy of the document prepared by the investigating officer at the time of conducting the search of the house. The said document disclosed that the detecting officer had informed the accused in writing that he had the right to insist on the presence of a Judicial Magistrate or a Gazetted Officer to witness the search. The petitioner answered in the affirmative, and his signature was collected. However, the said document was not produced along with the final report. The application was filed purportedly under Section 65(c) of the Indian Evidence Act, stating that the original of the record is lost and requesting that the prosecution be permitted to place on evidence a true photocopy of the same.

4. The petitioner filed a detailed objection objecting to the course adopted by the prosecution. He contended that in none of the prosecution records or in the statement of the witnesses reference is made to any such document prepared under Section 50 of the Act. It was also contended that the document was introduced to fill up the lacunae in the prosecution case.

5. The Sessions Judge rejected the objection raised by the petitioner and allowed the prosecution to mark the document by holding that the genuineness of the document can be looked into at a subsequent stage.

6. Sri. Rajesh Chakyat, the learned counsel appearing for the petitioner, submitted that no reasons whatsoever have been stated by the learned Additional Sessions Judge while proceeding to allow the application. All that is stated is that the genuineness of the document can be looked into at a subsequent stage, and only the admissibility of the document is required to be decided at the stage when the document was tendered in evidence. According to the learned counsel, the contention of the petitioner that the document is fabricated a