A Person Cannot Be Prosecuted For Consumption Of Narcotic Drug On The Basis Of Smell Of His Breath: Kerala High Court

Justice Bechu Kurian Thomas observed:

“The odourant receptor genes of humans play a vital role in our sense of smell and as the ability of the said gene is subjective, reliance upon such an identification cannot be conclusive. Sensory perception of human beings is not standardised or constant and therefore the ability cannot be a substitute for proof.”

The prosecution case is that the petitioner was found smoking near Malampuzha Dam and when he saw the complainant approach him, he threw the cigarette into the dam. However, the complainant smelt ganja from the breath of the petitioner and booked him for consuming narcotic drugs under Section 27(b) of the NDPS Act. The petitioner approached the High Court to quash the criminal proceedings against him saying that sense of smell by investigating officer is not a proof, and without any forensic evidence, the petitioner cannot be ultimately convicted.

The Public prosecutor argued that they have the right to adduce oral evidence to prove that the accused had consumed narcotic drug. He also submitted that the medical evidence can also be adduced and therefore, the case could not be quashed at this point.

The Court noted that Section 27(a) and Section 27(b) deals with different types of drugs and the punishment under each of these sub-clauses are also different. There is also no seizure of any drug to even show under which of these sub clauses the alleged act falls.

The Court exercised its inherent powers under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 and quashed the proceedings observing that without any seizure or medical test, it is impossible to prove the nature of the contraband. The court said that the allegation cannot be substantiated and the prosecution is an abuse of court's process.

Counsel for the Petitioner: Advocates Adith Kiran S., Nandagopal S. Kurup

Counsel for the Respondent: Public Prosecutor Adv. C. N. Prabhakaran

Case No: Crl M. C. 5852 of 2024

Case Title: Ibnu Shijil v State of Kerala

Citation: 2024 LiveLaw (Ker) 540