Kerala High Court Quashes NDPS Conviction; Specification Of Contraband In Millilitres Not Fatal If Chemical Report Shows Equivalent Weight
Isabella Mariam
The High Court of Kerala, Single Bench of Justice Bechu Kurian Thomas set aside the conviction and thirteen-year sentence imposed under Section 22(c) of the NDPS Act, granting the accused benefit of doubt due to unexplained delay in producing the seized contraband before the court. The case concerned the alleged possession of multiple ampoules containing Buprenorphine, a psychotropic substance. The Court held that the failure to account for the custody and sealing of the material raised doubts about the prosecution’s case. It further clarified that mentioning the quantity of the seized substance in millilitres instead of grams does not invalidate the prosecution, so long as the chemical analysis establishes the equivalent strength in weight as required under the NDPS Act.
The matter concerns a criminal appeal filed by the accused challenging his conviction under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act. The prosecution alleged that on 21 October 2011, the accused was found in possession of 174 ampules of Lupigesic along with 24 unlabelled ampules, each containing 2 millilitres of Buprenorphine. Twelve ampules were allegedly recovered from the pocket of his pants and Rs. 200/- was also seized. The prosecution asserted that the accused was intercepted near Aquinas College after the police acted upon information recorded under Section 42 of the Act.
The evidence consisted of testimonies of PW1 to PW6, Exhibits P1 to P20, and material objects MO1 to MO5. The defence produced Exhibit D1 and argued that there were inconsistencies regarding the manner of seizure and handling of contraband, including the absence of independent witnesses, discrepancies in signatures, and alleged impossibility of a container lorry being parked at the scene based on PW2’s deposition.
The appellant contended that mandatory provisions under Sections 42, 50, and 52A of the NDPS Act were not complied with. It was argued that the sample was not taken in the presence of a Magistrate and that the contraband was quantified in millilitres instead of grams, without any conversion in the charge. The appellant further alleged that there was unexplained delay in producing the seized contraband before the court.
The prosecution maintained that all procedural requirements had been met, claiming that the accused was properly informed of his right under Section 50 and that the entire contraband was produced before the court. It was also asserted that Exhibits P1 and P13 satisfied statutory reporting requirements and that Section 52A was irrelevant since the full quantity was produced.
The Court examined compliance with Sections 42 and 57, noting that “Exhibit P1 and Exhibit P13 were received by the immediate official superior on the same day itself and within the time limits prescribed by law.” It recorded that PW6’s deposition clarified the manner in which the numeral “1” was written, resolving the ambiguity in dates. Accordingly, it observed that statutory requirements under Sections 42 and 57 stood satisfied.
Regarding Section 50, the Court recorded that the accused was informed of his right and that he insisted on being searched before a Gazetted Officer. It stated that “the Excise Circle Inspector, Kochi was attempted to be contacted but since the said Officer was on leave, the Circle Inspector of Fort Kochi was contacted and he reached the place by 5.20 pm.” The Court further observed that “Exhibit P2 is the written consent statement of the accused agreeing to be searched.”
On the applicability of Section 50, the Court cited precedent and stated that “the provisions of section 50 of the NDPS Act will come into play only in the case of personal search of the accused and not of anything which the accused may be carrying in his hands.” The Court noted that search of the plastic kit did not require compliance, though the personal search did, and it found compliance established.
Addressing Section 52A, the Court recorded that “the entire quantum of contraband seized was produced before the Court and has even been marked in evidence.” It observed that compliance with Section 52A becomes relevant only when representative samples are produced, noting that “the question of compliance or non-compliance of section 52A… does not arise in the instant case.”
On the issue of delay, the Court examined Exhibits P14, P18, and P19 and observed that the contraband “reached the Court only on 28-11-2011 or at least on 27-10-2011.” It stated that “no attempt was even made to explain the reason for the delay or even the mode and manner in which the contraband was kept in custody.” The Court further recorded that the seizure mahazar “does not contain the specimen seal,” which it treated as a significant factor affecting credibility.
Evaluating cumulative deficiencies, the Court observed that the unexplained delay in production, lack of evidence regarding custody, and absence of a specimen seal created doubt about the integrity of the prosecution case. It stated that these circumstances “persuade this Court to give the benefit of doubt to the appellant.”
The Court directed that “the conviction and sentence imposed upon the appellant… is hereby set aside and the appellant is acquitted. The fine amount if any, deposited by the appellant, shall be refunded to him. This appeal is allowed as above.”
Advocates Representing The Parties
For the Appellant: Sri. P. Mohamed Sabah, Sri. Libin Stanley, Smt. Saipooja, Sri. Sadik Ismayil, Smt. R. Gayathri, Sri. M. Mahin Hamza, Shri. Alwin Joseph, Shri. Benson Ambrose.
For the Respondent: Smt. Sreeja V., Public Prosecutor.
Case Title: Aneesh v. State of Kerala
Neutral Citation: 2025: KER:84663
Case Number: Criminal Appeal No. 1218 of 2015
Bench: Justice Bechu Kurian Thomas
