[NDPS Act] Person Cannot Be Prosecuted For Allegedly Smoking 'Beedi' Containing 'Ganja' Without Forensically Examining 'Beedi': Kerala High Court

The proceedings were initiated against the man under Section 27 (b) of the NDPS Act. Section 27 (b) provides imprisonment for up to six months or ten thousand rupees fine or both for consuming narcotic drugs or psychotropic substances other than those that are mentioned under Section 27 (a).

Justice Bechu Kurian Thomas stated that the beedi that was allegedly said to be smoked by the petitioner was not subjected to forensic examination. The Court stated thus:

“In the absence of any forensic examination of the beedi, the prosecution against the petitioner for the offence under Section 27(b) of the Act, is without any legal basis.”

The prosecution case is that the man was found smoking a beedi filled with ganja and that he committed an offence punishable under Section 27(b) of the NDPS Act.

The Court noted that the alleged beedi filled with ganja was not subjected to forensic examination. The Court referred to the decision in Ibnu Shijil v State of Kerala (2024) and Anurag Shaji v State of Kerala (2023) to state that the olfactory abilities of the officer to identify the contraband substance based on smell cannot be an acceptable evidence to justify criminal prosecution. In that case, the Court noted that prosecution could not continue without forensic examination or a report from an expert identifying the nature of the contraband substance.

As such, the court quashed the proceedings against the petitioner.

Counsel for Petitioners: Advocates Navaneeth N Nath, Gautham Krishna E J , K S Stejo, Abhirami S

Counsel for Respondents: Public Prosecutor Noushad K A

Case Number: CRL.MC NO. 2114 OF 2024

Case Title: Hamjith v State of Kerala

Citation: 2024 LiveLaw (Ker) 647