Mentioning Contraband's Quantity In Millilitres Instead Of Grams Doesn't Vitiate NDPS Case If Chemical Report Shows Equivalent Weight: Kerala HC

Justice Bechu Kurian Thomas, made the observation while delivering judgment in a criminal appeal against the conviction and sentence imposed under NDPS, Act.

According to the prosecution case, the accused was found in possession of 174 ampules of Lupigesic and 24 unlabelled ampules. Prosecution further alleged that each ampule contained 2 milliliters of contraband and 12 of the ampules were found with the accused.

The appellant contended that the NDPS Act indicated quantity of contraband on the basis of grams while the prosecution dealt with milliliters and since there was an absence of evidence regarding quantum of contraband converted into grams, the charge was faulty and the accused cannot be found guilty for the offence of possessing commercial quantity of the contraband.

The Court observed that the chemical analysis report mentions the strength of the contraband in grams, hence the reference to millilitres in the charge framed by the prosecution is not affected.

“Exhibit P20 chemical analysis report specifically mentions that the strength of Bupremorphine per one millilitre is equivalent to 0.299 mg. Hence the quantum of 194 ampules seized from the appellant contained a total strength of 116 grams of Buprenorphine and falls in the commercial category. Since the conversion is mentioned in the chemical analysis report, reference to millilitres in the quantum of contraband seized and the charge framed has not affected the prosecution case.” the bench observed.

The Court has also examined whether the accused must be produced mandatorily before a Magistrate for a personal search under Section 50 of the NDPS Act. In the present case, when the accused was informed that he had a right to have the search conducted in presence of a Gazetted Officer or a Magistrate, he insisted on being searched in presence of a gazetted officer. The search was conducted in the presence of the Circle Inspector of Fort Kochi, after he came to the place in which the accused was found in possession of the contraband. Referring to Ranjan Kumar Chadha v State of Himachal Pradesh (AIR 2023 SC 5164), the High Court held that while the suspect's right to be informed of the option to be searched before a Magistrate or Gazetted Officer is mandatory, the endeavour to take the person to a Magistrate is only a directory requirement.

The High Court examined whether there was any delay in production of the contraband before the Sessions Court and found an unexplained delay in producing the contraband. Referring State of UP v Hansraj alias Hansu [(2018) 18 SCC 355], the Court held that unexplained delay in producing the seized material erodes the chain of custody and warrants the benefit of doubt to the accused.

“As there is no evidence forthcoming regarding the person in whose custody the contraband was kept, the conditions under which it was kept in the police station or elsewhere, the unexplained delay in producing the contraband before the Court coupled with the absence of the specimen seal on Exhibit P11 seizure mahazar, the integrity of the prosecution case becomes doubtful.” the Court noted.

The Court thus allowed the appeal by setting aside the conviction and acquitting the appellant.

Case Title: Aneesh v State of Kerala

Case No: Crl. A. 1218/ 2015

Citation: 2025 LiveLaw (Ker) 733

Counsel for Appellant: P Mohamed Sabah, Libin Stanley, Saipooja, Sadika Ismayil, R Gayathri, M Mahin Hamza, Alwin Joseph, Benson Ambrose

Counsel for Respondent: Sreeja V