Society must be protected from drug traffickers but investigation cannot be lawless: Kerala High Court

While society should be protected from drug-related crimes, the manner of investigating and prosecuting such offences must remain fair, the Kerala High Court recently observed [Raveedranath v State of Kerala]..Justice N Nagaresh made the observation while setting aside a man’s (appellant) sentence and conviction under Section 22(c) (punishment for possessing a commercial quantity of drugs) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act)..“Indeed, there is a need to protect society from criminals pedaling in narcotic drugs. The societal interest and safety will suffer if persons who commit crime are let off because the evidence against them is to be treated as if it does not exist,” the Court said..The Court, however, further noted that the manner in which drug traffickers are proceeded against must remain "above board.""The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations," the Court explained. .The High Court was considering an appeal filed challenging a session court’s decision to convict the appellant and sentence him to rigorous imprisonment of ten years for allegedly possessing a commercial quantity of drugs. .The prosecution claimed that the appellant was found in possession of various narcotics, including Phenergan, Lupigesic, Diazepam IP, and Buprenorphine IP following a body search conducted in 2006.The accused-appellant, however, argued that the search was conducted illegally and in violation of Section 50 (conditions under which search of persons shall be conducted) of the NDPS Act.Notably, the body search is said to have been conducted after obtaining consent from the appellant through a communication written in English. The appellant claimed that he only knew Tamil, while the prosecution claimed that the appellant had responded in English.The appellant, however, highlighted that the alleged letter of consent was not produced in the evidence before the trial court. The appellant also contended that the sessions court was wrong to opine that compliance with Section 50 of the NDPS Act was not necessary when the seizure was from a handbag rather than the body.He argued that the police testimony in the case was unreliable and urged the High Court to give him the benefit of the doubt..After considering rival contentions, the High Court opined that the search violated Section 50 of the NDPS Act and could not be used to prove any unlawful possession of drugs by the appellant.“In the present case, the sole allegation against the appellant is that he was found in possession of illicit narcotic drugs / psychotropic substances. An illicit article seized from the person of an accused during a search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband by the accused though any other material recovered during that search may be relied upon by the prosecution in other proceedings against the accused,” the Court said..The High Court added that the failure to produce the written communication (the English letter) concerning the search also raised serious doubts about the legality of the search and seizure.The Court proceeded to opine that the appellant's conviction could not be justified in such circumstances. Therefore, the High Court set aside the appellant's conviction and sentence under Section 22(c) of the NDPS Act and allowed the appeal. .The appellant was represented by advocate Manu Roy..[Read Judgment]