Prosecution under NDPS Act requires identification of contraband through scientific analysis; mere reliance on sensory perception is insufficient.

O R D E R

Dated this the 4^th day of July, 2025 The petitioners are accused Nos.4 and 5 in Crime No.1739 of 2023 registered at the Vanchiyoor Police Station for the offence punishable under Section 27(b) of the NDPS Act , now pending as C.C No.509 of 2025 on the files of the Judicial First Class Magistrate Court-XI, Thiruvananthapuram.

2. The crime was registered on the allegation that during the search/raid conducted in a lodge, on 05.08.2023, the accused, five in number, were found smoking ganja beedis inside a room. The petitioners are challenging the proceedings against them on the ground that the contraband, though produced in court, was not forwarded for chemical analysis.

3. Learned Counsel for the petitioners placed reliance on the decision rendered by this Court inIbnu Shijil v. State of Kerala [2024 (5) KHC 476] and the order inAnurag Shaji v. State of Kerala [2023 KHC 9406] , to contend that, in the absence of chemical analysis report, continuation of the prosecution will be an exercise in futility.

4. I heard the learned Public Prosecutor also.

5. In order to ascertain whether the seized beedis were forwarded to the Forensic Science Laboratory for analysis, a report was called from the jurisdictional court. In the report submitted, the Magistrate has stated that, no forwarding note was submitted by the investigating officer and hence, the alleged contraband was not sent for chemical analysis.

6. The beedis were seized way back on

05.08.2023 and produced in court on 06.08.2023. It is the settled legal position that there cannot be any successful prosecution without identifying the article through scientific analysis. As held by this Court in Ibnu Shijil (supra);

“8. The olfactory abilities of a person can at the most trigger a suspicion. The odourant receptor genes of humans play a vital role in our sense of smell and as the ability of the said gene is subjective, reliance upon such an identification cannot be conclusive. Sensory perception of human beings is not standardised or a constant and therefore that ability cannot be a substitute for proof. To identify the nature of the contraband on the basis of smell, that too, from the breath of a person cannot be a piece of acceptable evidence to justify a criminal prosecution. As noted earlier, it could be the basis for suspicion, but certainly not the sole basis for prosecution. If a person is permitted to be prosecuted on the mere basis of smell from his breath, it can lead to anomalous situations where the Investigating Officers would be able to rope in any person as an accused in an NDPS offence.”

I am in respectful agreement with the above findings. Being so, further prosecution of the petitioners will amount to an abuse of process of court.