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2024 DIGILAW 277 (KER)

Syju Thankachan v. State of Kerala

2024-02-28

BECHU KURIAN THOMAS

body2024
ORDER : Petitioner is the second accused in C.C.No.175/2022 on the files of the Judicial First Class Magistrate Court, Kakkanad. He is facing an indictment for the offence under Sections 27(B) and 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the Act). The prosecution was initiated on the basis of an alleged statement given by the petitioner to the Investigating Officer in Crime No.1962/2021 of Palarivattom Police Station, stating that he, along with others, had consumed narcotic drugs on 29.03.2020 and on various other dates. On the basis of the above information, Crime No.1418/2021 of Infopark Police Station, was registered, and a final report has been filed. 2. Since the crime was registered on the basis of the statement given by the petitioner to the Investigating Officer in another crime, and no narcotic drugs were seized, the other accused approached this Court seeking to quash the proceedings. By judgment dated 22.02.2022 in Crl.M.C.No.995/2022 the learned Single Judge of this Court quashed the proceedings, noticing that no contraband was seized and that nothing had been recovered to prove the guilt of the accused. It was also observed that circumstantial evidence would not be sufficient to prove the case of the prosecution, and on that basis this Court quashed the entire proceedings against the sixth accused. Similarly, accused Nos.3 and 4 had also approached this Court through Crl.M.C.No.1729/2022 and Crl.M.C.No.2367/2022, and all proceedings against those accused were also quashed. As far as judgment in Crl.M.C.No.995/2022 is concerned, the State had preferred a Special Leave Petition as S.L.P.No.5493/2022, which was dismissed by the Supreme Court. 3. Sri.S.Justus, the learned counsel for the petitioner, submitted that since the proceedings against the co-accused have been quashed on the finding that, without recovery of the contraband allegedly consumed, no prosecution can be effectively carried out, the benefit of the said findings ought to be extended to the petitioner as well. 4. Sri.Noushad K.A., the learned Public Prosecutor, opposed the application and submitted that notwithstanding the failure to recover the contraband, considering the nature of the allegations, especially since it is with respect to consumption of narcotic drugs, which is punishable under Section 27(B) of the Act, recovery is not essential, especially in view of the confession statement made by the petitioner. Sri.Noushad K.A., the learned Public Prosecutor, opposed the application and submitted that notwithstanding the failure to recover the contraband, considering the nature of the allegations, especially since it is with respect to consumption of narcotic drugs, which is punishable under Section 27(B) of the Act, recovery is not essential, especially in view of the confession statement made by the petitioner. It was also submitted that, as against the other accused, proceedings have been quashed, when the confession of the petitioner fell within the realm of that of a co-accused, while as against the petitioner, it is the confession of the accused himself, and both stand on a different footing. 5. On a consideration of the rival contentions, it is noticed that the statement allegedly given by the petitioner is to a police officer. Section 25 of the Evidence Act, 1872 reads as follows; 25. Confession to police officer not to be proved. No confession made to a police-officer shall be proved as against a person accused of any offence. 6. The statement made by the petitioner to the Police cannot partake the character of a confession as per Section 25 of the IE Act. What remains is only the circumstantial evidence that the accused consumed the contraband. A learned Single Judge of this Court has already held in Crl.M.C.No.995/2022 that the circumstantial evidence is not sufficient to prove the case of the prosecution in the facts of the present case. It is also significant to note that the quashing of the proceedings against one of the other accused was challenged by the State before the Supreme Court, which also ended in dismissal. 7. In view of the above, the continuance of the proceedings against the petitioner is an abuse of the process of the court. 8. Hence, all proceedings against the petitioner in C.C.No.175/2022 on the files of the Judicial First Class Magistrate Court, Kakkanad, are quashed. This Crl.M.C is allowed as above.