Prosecution under NDPS Act requires chemical analysis of contraband; absence invalidates charges.

ORDER

The petitioner is the accused in C.C.No.1025/2025 on the file of the Court of the Judicial First Class Magistrate-I, Sulthanbathery, Wayanad, (‘Trial Court’, in short), which has originated from Crime No.946/2025 registered by the Sulthanbathery Police Station, alleging the commission of the offence punishable under Section 27 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 , (‘NDPS’, in short).

2. The crux of the prosecution allegation is that; on

08.07.2025, at 18.15 hours, the accused was found near the Muthanga Police Check Post smoking ganja. Thus, the accused have committed the above offence.

3. I have heard, the learned counsel for the petitioner and the learned Public Prosecutor.

4. The learned counsel for the petitioner submits that, it is merely on the basis of suspicion that the Detecting Officer has reported that the petitioner was smoking ganja. The Investigating Officer did not subject the contraband to chemical analysis as laid down by this Court inAnurag Shaji v. State of Kerala [ 2023 KHC 9406 ] and Ibnu Shijil v. State of Kerala [ 2024 (5) KHC 476 ]. Therefore, even if the allegations in the Annexure 1 Final Report are taken on its face value, the same will not attract the offence under Section 27 (b) of the NDPS Act. Hence, all further proceedings pursuant to Annexure 1 Final Report may be quashed.

5. The learned Public Prosecutor very fairly conceded that the contraband was not subjected to chemical analysis before the filing of Annexure 1 Final Report.

6. In Anurag Shaji’s case (supra), this Court has categorically held that if the contraband article is not subjected to chemical analysis, a charge under the NDPS Act will not lie.

7. Likewise in Ibnu Shijil’s case (supra), this Court has held that the olfactory abilities of a person cannot trigger a suspicion. The sensory perception of a human is not standardised or constant, and therefore cannot substitute proof. If a person is permitted to prosecute merely on the basis of smell from his breath, it can lead to anomalous situations where the Investigating Officer would rope in any person in an NDPS offence. Therefore, it is imperative to get the contraband article tested before proceeding with the prosecution.

8. The above sequence of events undoubtedly establish that the contraband was not subjected to chemical analysis before the filing of Annexure 1 Final Report. In light of the principles laid down in Anurag Shaji and Ibnu Shijil’s cases, I am of the firm view that the prosecution as against the petitioner is unsustainable in law.

In the aforesaid circumstances, I allow the Crl.M.C, by quashing Annexure 1 Final Report, Annexure 2 FIR and all further proceedings in C.C.No.1025/2025 on the file of the Trial Court, as against the petitioner in Crime No.946/2025 of the Sulthanbathery Police Station.

Sd/-