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2026 Supreme(Online)(Ker) 57547
IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.S. Dias, J
Naveen Shaji – Appellant
Versus
State of Kerala – Respondent
CRL.MC NO. 5536 OF 2021
For the Appellants/Petitioners: Sasthamangalam S. Ajithkumar (Sr.), Sreejith S. Nair
For the Respondents: Zubair Pulikool
Prosecution under the NDPS Act is unsustainable if the alleged contraband is not subjected to chemical analysis, as an officer's sensory perception (olfactory ability) cannot substitute scientific proof.
Headnote:(A) NDPS Act - Evidence - Chemical Analysis - Failure to subject the alleged contraband article to chemical analysis renders a charge under the Act unsustainable. (Para 7)
(B) NDPS Act - Suspicion - Olfactory Perception - Sensory perception of a human is not standardized and cannot substitute legal proof; prosecution cannot be based solely on the smell of breath or suspicion without scientific testing of the contraband. (Para 8)
Issues: Whether the prosecution under Section 27(b) of the NDPS Act is sustainable when the contraband article was not subjected to chemical analysis.
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 31.08.2026, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
O R D E R
Dated this the 31st day of August, 2026
The petitioner is the accused in C.C. No.984/2020 on the file of the Temporary Court of the Judicial First Class Magistrate, Neyyattinkara (‘Trial Court’, in short), which has arisen from Crime No.356/2020 registered by the Kovalam Police Station, Thiruvananthapuram, alleging the commission of the offence punishable under Section 27(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985, (‘NDPSAct’, in short).
2. The crux of the prosecution case is that; on 29.02.2020, at around 19:45 hours, the Detecting Officer, while on patrolling duty, found the petitioner standing on the roadside near Palace Junction, Avaduthara Desom, and smoking a beedi containing ganja. Accordingly, the petitioner was apprehended with the contraband article. Thus, the accused has committed the above o
3. I have heard the learned counsel appearing for the petitioner and the learned Public Prosecutor.
4. The learned counsel for the petitioner submits that, it is merely on the basis of a suspicion that the second respondent had apprehended the petitioner and alleged that he was found smoking a beedi containing ganja. The Investigating Officer has failed to send the beedi for chemical analysis as per the law laid down by this Court in Anurag 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 2 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 FIR and Annexure 2 Final Report may be quashed.
7. 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 NDPSAct will not lie.
8. 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 a constant, and therefore cannot substitute proof. If a person is permitted to be prosecuted 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.
9. In light of the principles laid down in Anurag Shaji and Ibnu Shijil’s cases, I am of the the prosecution as against the petitioner is unsustainable in law.
In the aforesaid circumstances, I allow the Crl.M.C, by quashing Annexure 1 FIR, Annexure 2 Charge Sheet in Crime No.356/2020 of the Kovalam Police Station and all further proceedings in C.C. No. 984/2020 of the Trial Court, as against the petitioner.
