SUBAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is the first accused in SC No. 12/2014 pending before the Special Judge, NDPS Cases, Vadakara. He has approached this Court under Section 482 of the Code of Criminal Procedure (for short 'the Code') seeking to set aside Annexure-A7 order dated 24/11/2014 passed by the said Court in Crl MP No. 584/14 in SC No. 12/2014. The facts of the case in brief are as follows: On 28/06/2011 the petitioner herein along with three other accused were found in possession of brown sugar, kept for the purpose of sale, without any authority and thereby committed the offence punishable under Section 21 (c), 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act'). The crime in this case was registered by the Sub Inspector of Police, Perumpadappu Police Station, as FIR No. 212/2011 dated 28/06/2011, alleging the commission of the offence, punishable under Sections 21(c) and 29 of the NDPS Act. The allegation of the prosecution was that the petitioner along with three other accused were caught while engaged in selling brown sugar at three different places in Malappuram District. The specific case of the prosecution against the petitioner was that he was engaged in selling brown sugar near Taj Theatre at Palappetty in Malappuram District. The investigation was initiated and completed by CBCID, Malappuram and a final report was filed on 20/01/2014, charge-sheeting all the four accused including the petitioner. Annexure A2 is the copy of the final report. The Investigating Officer took three samples each of 10 grams from the 900 grams of brown sugar allegedly seized from the petitioner, put marks thereon as S1, S2 and S3 and forwarded those before the NDPS Court, Vadakara along with the remaining 870 grams of brown sugar. These items were produced before the Court as per PR No. 29/2011. The samples marked as S1, S2 and S3 were forwarded to the Chemical Examiner's Laboratory for chemical analysis and a report was obtained from the Regional Forensic Science Laboratory, Police Department, Government of Kerala, signed by the Assistant Director of the said laboratory. The report goes to show that the samples analysed as S1, S2 and S3 from PR No. 29/2011 contained Diacetyl morphine known as brown sugar.

(2.) The accused No. 4, after his arrest had confessed before the Investigating Officer to the effect that the contraband seized from his custody is not brown sugar but only a powder having semblance. He conferred further that if Avil-25, Varalium-5, chocolate powder and sugar are provided to him, he would prepare such a powder. Accordingly the accused No. 4 was made to create such a powder by providing the ingredients as stated by him in his confession. Samples were taken therefrom, packed and sealed in the presence of the witnesses and those were also forwarded to the Regional Forensic Science Laboratory, Police Department, Government of Kerala as per PR No. 64/2011 for chemical analysis. The copy of the seizure mahazar prepared is appended along with as Annexure 3. Report was obtained from the Regional Forensic Science Laboratory after analysis of the said sample (PR No. 64/2011) stating that the sample forwarded does not contain any narcotic and psychotropic substance.

(3.) The definite case of the accused was that he had prepared a powder incorporating Avil-25, Varelium-5, chocolate powder and sugar, in order to pass it on to his customers under the guise that it is brown sugar intending thereby to make quick and easy money. The very same contention was taken by accused No. 3 while applying for bail on 15/11/2011. The true copy of the said bail application is also appended along with as Annexure 4.