IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 27TH OCTOBER 2010 / 5TH KARTHIKA 1932 Crl.MC.No. 3873 of 2010() ---------------------------------- ( AGAINST THE ORDER IN O.R 1/06 IN SC.499/2006 of SESSIONS COURT, PALAKKAD) .................... PETITIONER(S): ACCUSED 3 AND 4: --------------------------------------------------- 1. USMAN @ USMAN HAJI, PARAYARUKUZHIYIL HOUSE, AMAYUR, PATTAMBI, POLPULLY, PALAKKAD. 2. HAMEED ALI VELLIRIYIL, S/O.LATE SULAIMAN, VELLIRIYIL HOUSE, SUNEERA MANZIL, HARMONY STREET, PATTAMBI. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): RESPONDENTS & STATE -------------------------------------------------------------- 1. NARCOTICS CONTROL BUREAU, REGIONAL INTELLIGENCE UNIT, THIRUVANANTHAPURAM. 2. STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.3873 OF 2010 --------------------------------------------- Dated 27th October, 2010 O R D E R On 15/3/2006 at about 3.45 a.m, Officers of Narcotic Control Bureau intercepted accused 1 and 2 from platform No.4 of Shornur Railway station, when they were about to board West Coast Express to Chennai, carrying two suitcases. On search of accused 1 and 2, in the presence of the witnesses, 5 Kg. and 2.5 Kg alleged to be heroine were seized from the big black suitcase and other suitcase, respectively. They were arrested. Prosecution case is that accused 3 and 4 conspired together to procure 7785 grams of heroine from fifth accused, to export it to Saudi Arabia through accused 1 and 2 and in furtherance of the criminal conspiracy, fourth accused contacted Crmc 3873/10 2 fifth accused for supply of heroine and fourth accused deposited Rs.60,000/- in the account of son of the fifth accused on three different occasions and fifth accused procured and sent consignment of heroine and accused 3 and 4 concealed them in false cavities of suit cases and handed over them to accused 1 and 2 for illicit trafficking to Saudi Arabia from Chennai and accused 3 and 4 indulged in financing to procure heroine as well as flight ticket of the second accused and while accused 1 and 2 were thus transporting the drug, they were intercepted and arrested. It is alleged that accused thereby committed the offences under Section 8(c) read with Sections 21(c), 27A, 28 and 29 of N.D.P.S Act. After completing investigation, Annexure-I complaint was filed before Sessions Court, Palakkad which was taken Crmc 3873/10 3 cognizance as S.C.499/2006. Petitioner, the third accused filed Crl.M.C.3040/2009 to quash the proceedings, contending that on the request of the prosecution, sample of heroine was sent to Central Forensic Science Laboratory, Hyderabad and report received from the laboratory shows that Diacetyle Morphine (heroine) could not be detected in all the three samples examined and therefore, cognizance taken is to be quashed. This Court by Annexure-IV order, granted liberty to the petitioner to canvass the said grounds and seek an order of discharge under Section 227 of Code of Criminal Procedure. Petitioner filed Crl.M.P.3202/2009 before Sessions Court, Palakkad seeking an order of discharge under Section 227 of Code of Criminal Procedure, contending that in the light of the report of Crmc 3873/10 4 Central Forensic Science Laboratory, when the articles seized is not heroine, petitioner is to be discharged. Learned Sessions Judge by Annexure-V order dismissed the petition holding that Annexure-II report prepared by Assistant Chemical Examiner, Customs House, Cochin shows that it is heroine and whether the said report is to be accepted or Annexure-III report is to be accepted can only be decided at the time of trial. This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings against the petitioner contending that in the light of Annexure-III report, even if petitioner is to be tried, there is no likelihood of a conviction and therefore, the case against the petitioner is to be quashed. 2. Learned counsel appearing for the petitioner and first respondent were heard. Crmc 3873/10 5 3. Annexure-II report prepared by Assistant Chemical Examiner is to the effect that colour test and thin layer chromatography establish that each of the three samples, examined at the laboratory, contained heroine. It is based on that the report Annexure-I complaint was filed alleging that two suit cases seized from accused 1 and 2 contained 5 Kg and 2.5 Kg of heroine and it was being transported to Chennai to be illicitly taken to Saudi Arabia and thereby the accused committed the offences. It is the Narcotic Control Bureau who filed the petition before the Sessions Court, to send one each of the remaining samples to Central Forensic Science Laboratory, Hyderabad for quantitative analysis. It is based on the quantitative analysis Annexure-III report was submitted. Annexure-III report shows Crmc 3873/10 6 the result of three samples examined at the laboratory as follows. Diacetyle Morphine (heroine) could not be detected in all the three exhibits. However, Ext.S2 was was found to be derivative of Carbohydrate and two samples show that they contain caffeine. 4. Finding in Annexure-III that the samples on analysis are found to be derivative of carbohydrates will not show that it was either heroine or any other narcotic drug or psychotropic substance. So also, even though caffeine was found, it is also not a narcotic drug or psychotropic substance. Question therefore is, whether petitioner is entitled to be discharged in view of Annexure-III report Argument of the learned counsel appearing for the first respondent is that when Annexure-II report shows that the samples examined was Crmc 3873/10 7 heroine and as Annexure-III report will not supersede Annexure-II, as in the case of report of Central Food Laboratory as provided under Section 13(3) of Prevention of Food Adulteration Act, the case cannot be quashed. It was also argued that whether the conclusion arrived at in Annexure-II report or Annexure- III is correct, cannot be decided at this stage and can only be decided on evidence after trial and therefore, there is no reason to interfere with Annexure-V order. Learned counsel also pointed out that Narcotic Control Bureau is entitled to send the third sample to the laboratory and if it is found that it is heroine, based on Annexure-III, petitioner cannot be discharged. 5. Annexure-II report was submitted by Assistant Chemical Examiner Customs House, Crmc 3873/10 8 Cochin based on qualitative analysis. It was pursuant to the decision of the Apex Court in Micheal Raj v. Intelligence Officer (2008 (2) KLT 36) Narcotic Control Bureau filed the petition before learned Sessions Judge to send one of the remaining samples each, to the Central Forensic Science Laboratory, Hyderabad as no quantitative test was conducted at Customs House, Cochin for preparing Annexure-II report and report based on quantitative test is necessary. When Annexure-III report is based on quantitative analysis and Annexure-II report is based on qualitative analysis. Definitely preference is to be given to Annexhure-III report based on quantitative analysis. If that be so, Annexure-III report establishes that articles involved in the case does not contain heroine or any other narcotic drug or Crmc 3873/10 9 psychotropic substance. In such circumstances, even if petitioner is to be tried, there is no likelihood of a successful prosecution. In such circumstances, it is not in the interest of justice to continue the prosecution. Petition is allowed. Annexure-V order passed by Additional Sessions Judge, Palakkad in Crl.M.P.3202/2009 in S.C.499/2006 is set aside. Petitioner is discharged under Section 227 of Code of Criminal Procedure. M.SASIDHARAN NAMBIAR, JUDGE. uj.