Safiya Malik

The High Court of Kerala Single Bench of Justice Johnson John set aside the conviction and sentence imposed by the trial court under Sections 22(b) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The Court held that the prosecution was vitiated on account of procedural violations relating to evidence recording under Section 276 of the Code of Criminal Procedure, 1973, and sampling requirements under Section 52A of the NDPS Act. The Court directed the acquittal of the accused and ordered his release from custody, unless required in connection with any other case.

The prosecution alleged that the accused was found in conscious possession of 250 ampoules of Buprenorphine injection (Lupigesic), 165 ampoules of Diazepam Starlium, and 60 ampoules of Diazep. The seizure reportedly took place on 5 July 2011 at 16:40 hours near MSMI Christh Jyothi Convent building at Sulthan Bathery.

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Following the arrest, the accused was charged under Sections 22(b) and 22(c) of the NDPS Act. During trial before the Special Court for NDPS Act Cases, Vatakara, the prosecution examined eight witnesses (PWs 1 to 8), and marked Exhibits P1 to P13 along with Material Objects MOs 1 to 12. The defence marked Exhibit D1.

The trial court convicted the accused, accepting the chief affidavits of prosecution witnesses as substantive evidence. This conviction was later challenged before the High Court. When the appellant had no representation for several postings, Adv. Anand Mahadevan was appointed as State Brief.

The appellant’s counsel argued that the prosecution was vitiated because the sample was drawn by PW1 without recourse to Section 52A(2) of the NDPS Act, which requires sampling in the presence of a Magistrate. Further, the trial court had accepted chief affidavits of PWs 1 and 4 in violation of Section 276 CrPC, which mandates that examination-in-chief must be recorded in open court in the presence of the accused.

On the other hand, the Public Prosecutor submitted that the testimony of PWs 1 and 4 was reliable, and the seizure and arrest were proved beyond doubt. The prosecution urged that no interference with the conviction was warranted.

The Court examined the mahazar (Exhibit P1) where the samples were listed as items 1, 3, and 5 but found no description of the procedure adopted for drawing them. The Detecting Officer (PW1) admitted to preparing the samples at the spot, which formed a key issue before the appellate court

Justice Johnson John recorded that Section 276 CrPC prescribes the procedure for recording evidence before a Court of Session, requiring it to be taken down in writing by the presiding Judge or under his direction, signed, and forming part of the record. The judgment stated: “Therefore, if the trial court permits the prosecution to file chief affidavit of a material witness as evidence in a criminal case against the accused, the same will cause serious prejudice to the accused, inasmuch as the entire contents of the chief affidavit can only be treated as an outcome of the leading questions put to the witness.”

The Court further referred to Section 273 CrPC, which requires all evidence in a criminal trial to be taken in the presence of the accused, and Section 278 CrPC, which mandates that such evidence be read over to the witness in the presence of the accused.

Citing the Supreme Court in Ekene Godwin v. State of Tamil Nadu (2024 SCC OnLine 337), the judgment recorded: “When the examination-in-chief of a material prosecution witness is being recorded, the presence of the Advocate for the accused is required. He has a right to object to a leading or irrelevant question being asked to the witness.”

Similarly, in Ashok v. State of Uttar Pradesh [2024 KHC 6668], the Court quoted: “If the examination-in-chief of a prosecution witness is recorded in the absence of the advocate for the accused, a very valuable right of objecting to the questions asked in examination-in-chief is taken away.”

Turning to sampling procedure, the Court relied on the Supreme Court’s decision in Union of India v. Mohanlal [2016 KHC 6069], observing: “The process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise.”

The Court also cited Simarnjit Singh v. State of Punjab [AIR 2023 SC (Supp) 1010], where the prosecution was held vitiated when the detecting officer drew samples without following Section 52A(2).

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Summarising, the Court stated: “In view of the above stated reasons, I find that the case of the prosecution is not free from suspicion and therefore, the accused is entitled for the benefit of reasonable doubt.”

The Court concluded by stating: “Accordingly, the impugned judgment is set aside and the appellant is acquitted of the offences charged against him.” The judgment continued: “The appellant is directed to be released forthwith from the custody, unless otherwise his custody is required in connection with any other case.” The appeal was formally allowed, and the Court directed: “The registry is directed to forward a copy of this judgment to the superintendent of the concerned jail where the accused is detained, for necessary information and compliance.”

Advocates Representing the Parties

For the Petitioner: Sri. T.P. Santhosh Kumar, Advocate; Sri. Anand Mahadevan, State Brief
For the Respondents: Sri. Alex M. Thombra, Public Prosecutor

Case Title: Askaf v. State of Kerala
Neutral Citation: 2025: KER:66384
Case Number: Crl. Appeal No. 447 of 2014
Bench: Justice Johnson John