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2021 Supreme(Online)(KER) 26087
HIGH COURT OF KERALA
V. G. Arun, J
KRISHNA PRASOBH – Appellant
Versus
STATE OF KERALA – Respondent
Crl.MC/1311/2021
Sri.Vipin Narayanan
Insufficient evidence linking an accused to drug possession renders charges under the NDPS Act unsustainable.
Headnote:
Narcotics - NDPS Act - Section 27 - Insufficient Evidence
Fact of the Case:
The petitioner, charged under the NDPS Act, argued insufficient evidence linking him to Ganja possession after being near others who smoked. The complaint was contested as lacking legal basis due to unidentified suspects and no contraband seized from the petitioner.
Finding of the Court:
The court found that the evidence did not substantiate a case against the petitioner, as he was neither identified as consuming drugs nor was he found in possession. Previous guilty pleas of co-accused could not be used against him due to lack of direct evidence.
Issues: Whether the petitioner could be charged under Section 27 of the NDPS Act without any direct evidence linking him to the offence.
Ratio Decidendi: The court reasoned that mere presence near someone using drugs is insufficient for charge; evidence must connect the accused directly to the offence. Co-accused confessions are inadmissible against non-testifying accused.
Final Decision: The petition was allowed, and all proceedings against the petitioner were quashed.
O R D E R
Petitioner is the accused in C.C.No.303 of 2021 pending on the files of the Judicial First Class Magistrate Court, Pathanapuram. The case originated from Crime No.04 of 2020 registered at the Pathanapuram Excise Range for the offence punishable under Section 27 (b) of the NDPS Act . The crime was registered on the allegation that, at about 6 p.m on 04.04.2020, the Excise Range Inspector and party saw five youngsters loitering in a bye lane near the Kunnikkode-Kura Road in Thalavoor. Since lockdown was in force, the patrol party stopped the vehicle to warn them against assembling on the road. On reaching near the young men, one among them, wearing a White T-shirt and Bermuda Shorts, was found to be drawing smoke from an apparatus with a small cloth draped at its end. On questioning the youngsters they revealed that the apparatus is called ‘Bong’ and is used for smoking Ganja. The Excise Inspector opened the apparatus and found 200 mg. of Ganja inside it. Thereupon, the Ganja and the apparatus were seized and all five persons arrested. On completion of investigation and Annexure B complaint was filed and the case numbered as C.C.No. 361 of 2020 on the files of the JFCM, Pathanapuram. Accused numbers 2, 3 and 4 appeared before court and pleaded guilty. By Annexure A3 judgment, the said accused were convicted and sentenced to pay fine of Rs.1500/- each, with default sentence of simple imprisonment for seven days. The case against the petitioner (A1) and the 5th accused was split up and re-filed as C.C. No.742 of 2020. Later the 5th accused also pleaded guilty and was found guilty and imposed with the same punishment as the other convicted accused. The case against petitioner was again split up and re-filed as C.C.No. 303 of 2021. This Crl.M.C is filed seeking to quash Annexure B complaint and all further proceedings in C.C.No. 303 of 2021. The main ground of challenge is total absence of legal evidence to connect the petitioner with the alleged offence.
2. The learned Counsel for the petitioner contended that even going by the prosecution allegation, only the person in the White T-shirt had smoked Ganja. The identity of that person is not forthcoming from the complaint or the statements of the witnesses. No contraband was seized from any of the other accused. It was contended that the alleged admission of the accused that all of them had drawn smoke from the apparatus (Bong), does not amount to legal evidence. Moreover, no scientific evidence is collected to substantiate the allegation. It was also argued that conviction of the co-accused on their pleading guilty, does not hamper the petitioner from challenging the proceedings against him. In support of this contention, reliance was placed on the Apex Court’s decision in Tofan v. State of Tamil Nadu [ 2020 (6) KHC 111 ].
3. The learned Government Pleader contended that the arguments call for appreciation of evidence and therefore, cannot be considered in a petition under Section
482 Cr.P.C.
4. The contours of the power under Section 482 was considered by the Apex Court in State of Haryana v. Bhajan Lal , [1992 Supp (1) SCC 335] and the categories of cases wherein such power could be exercised, illustrated as under;
“(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the al
