The Kerala High Court at Ernakulam on Monday set aside the conviction of a 33-year-old man accused under the stringent Narcotic Drugs and Psychotropic Substances Act (NDPS Act), pointing out procedural lapses that struck at the root of the prosecution's case. Justice Johnson John delivered the Judgment while allowing Criminal Appeal No. 447 of 2014.
Background
The appellant, Askaf, son of Azeez from Sultan Bathery, had been convicted by the Special Court (NDPS Act Cases), Vatakara, for allegedly possessing 250 ampoules of Buprenorphine injections and several ampoules of Diazepam in 2011. The trial court found him guilty under Sections 22(b) and 22(c) of the NDPS Act and sentenced him accordingly.
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However, during the appeal, it emerged that crucial procedures - mandated by both the Code of Criminal Procedure and Supreme Court guidelines - had been ignored. The accused had long remained in custody, and the High Court had appointed Advocate Anand Mahadevan as State Brief to represent him since there was no private counsel available.
Court's Observations
Justice Johnson John focused sharply on two aspects. First, the trial court had accepted affidavits of key prosecution witnesses instead of recording their examination-in-chief in open court.
The Judge noted,
"If the trial court permits the prosecution to file chief affidavit of a material witness as evidence in a criminal case, it will cause serious prejudice to the accused."
The Court reminded that Section 276 of the Criminal Procedure Code requires evidence before a Sessions Court to be recorded in writing, in the presence of the accused, with opportunities for objections to leading or irrelevant questions.
Second, the Court highlighted grave lapses in handling the seized drugs. The detecting officer had drawn samples himself at the spot, without approaching a magistrate as required under Section 52A of the NDPS Act.
Referring to the Supreme Court's ruling in Union of India v. Mohanlal, the judge stressed that sampling must be done under judicial supervision.
"There is no provision in the Act that mandates taking samples at the time of seizure," the bench observed,
Adding that failure to follow the mandated safeguards vitiates the prosecution case.
The Court also cited Simranjit Singh v. State of Punjab and other rulings where the Supreme Court held that bypassing Section 52A procedures raises serious doubts about the integrity of the evidence.
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Decision
Finding merit in the defence argument, the High Court concluded that the prosecution's case was riddled with doubts.
"The case of the prosecution is not free from suspicion and therefore, the accused is entitled for the benefit of reasonable doubt," Justice Johnson John held.
Accordingly, the Court set aside the trial court's order, acquitted Askaf of all charges, and directed that he be released forthwith unless wanted in any other case. The registry was also instructed to forward a copy of the order to the jail superintendent for immediate compliance.
With this ruling, the Court once again underlined that strict compliance with procedural safeguards is non-negotiable in NDPS cases, where the penalties are extremely harsh but the burden of proof rests firmly on the prosecution.
Case Title: Askaf v. State of Kerala & Anr.
Case Number: Criminal Appeal No. 447 of 2014
Date of Decision: 8 September 2025
