Kerala High Court
Union Of India vs Muhammed Sobah on 29 July, 2025
2025:KER:56206
CRL.A NO. 38 OF 2024 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
TUESDAY, THE 29TH DAY OF JULY 2025 / 7TH SRAVANA, 1947
CRL.A NO. 38 OF 2024
CRIME NO.OR 1/2019 OF NARCOTICS CONTROL BUREAU,
SUB-ZONE,KOCHI, Ernakulam
AGAINST THE ORDER/JUDGMENT IN SC NO.780 OF 2019 OF
ADDITIONAL SESSIONS JUDGE - VII, ERNAKULAM
APPELLANT:
UNION OF INDIA
REPRESENTED BY THE INTELLIGENCE OFFICER, NARCOTIC
CONTROL BUREAU, KOCHI, PIN - 682037
BY ADVS.
SRI.RAJAGOPALAN NAIR.K.R., CGC
SHRI.R.VINU RAJ, SPL. P. P. NARCOTICS CONTROL
BUREAU
RESPONDENT:
MUHAMMED SOBAH
AGED 23 YEARS
S/O. HAWAA MOHAMED, MALDIVIAN NATIONAL, R/O.
KUDADHAHARAAGE, ALI KATHEEB MAGU, G A, VILINGILI,
MALE, MALDIVES PP IA 11E9899, PIN - 119899
BY ADV SMT.NIHARIKA HEMA RAJ
OTHER PRESENT:
SR PP-RENJIT GEORGE
SPL. P.P. SRI. R. VINURAJ
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
09.01.2024 AND HAVING BEEN FINALLY HEARD ON 21.07.2025, THE
COURT ON 29.07.2025 DELIVERED THE FOLLOWING:
2025:KER:56206
CRL.A NO. 38 OF 2024 2
JUDGMENT
This appeal has been filed by the Union of India through the Intelligence Officer, Narcotics Control Bureau (hereinafter referred to as the 'NCB'), Kochi, challenging the judgment dated 04.09.2023 in S.C.No.780/2019 on the file of the Additional Sessions Judge-VII, Ernakulam arising from O.R.No.1/2019 of NCB, Sub-Zone, Kochi.
2. The respondent who was the sole accused in S.C.No.780/2019 is a Maldivian national. On 05.03.2019, the Kochi Unit of NCB received information from the Air Intelligence, Customs Unit, Cochin International Airport Limited (CIAL), Kochi that a Maldivian national had been apprehended while attempting to leave India for the Maldives by Indigo Flight No. 6E 1787 on the suspicion that he was carrying narcotic drugs concealed in secret compartments in an item of baggage which had been checked in by him on the aforesaid flight from Kochi to the Maldives. Based on the said information and following the instructions issued by the Superintendent in charge of the Kochi Unit, a team of officials from the NCB reached the CIAL at 7:45 a.m. on 05.03.2019, and requested certain independent witnesses to witness the search proceedings to be conducted by them. The NCB officers also offered themselves for search, and nothing incriminating 2025:KER:56206 CRL.A NO. 38 OF 2024 3 was found in their possession. The respondent/accused was detained at the office of the Assistant Commissioner of Customs, Air Intelligence Unit, CIAL. The respondent/accused disclosed his name as Mohamed Sobah. According to the prosecution, the Customs officials handed over one dark ash-coloured trolley bag with the endorsement 'CARIBBEAN' to the NCB officials. The Customs officials also handed over to the NCB officials an office note (Ext.P3) and documents such as baggage claim tag, baggage tag, a Medical Certificate issued by the Medical Officer (regarding the treatment of an injury on the arm of the respondent/accused), a letter from the Indigo Airlines to the Assistant Commissioner, Customs, CIAL, a copy of the passenger manifest for the Flight No.6E 1787, and a passport issued in the name of the respondent/accused. The trolley bag was found to contain certain false compartments at both ends, and in these false compartments, a total of 13 packets of different sizes wrapped in brown cellophane were found. All these 13 packets were found to contain dark brown-coloured substance of similar texture, smell, and colour. According to the prosecution, small quantities from all 13 packets were taken out and tested with the help of a field drug testing kit, and they were found to test positive for the presence of Hashish. When all the packets were weighed together, the total weight came to three kilograms. The articles 2025:KER:56206 CRL.A NO. 38 OF 2024 4 were therefore seized, and the respondent/accused was arrested on 05.03.2019. O.R.No.1/2019 of NCB, Sub-Zone, Kochi was accordingly registered, and the same was also submitted before the Judicial First Class Magistrate Court, Angamaly. The Sessions Court, Ernakulam, took the matter on file as S.C.No.780/2019, and the same was made over to the Additional Sessions Judge-VII, Ernakulam, for trial and disposal.
3. The Court framed charges against the respondent/accused under Sections 8(c) r/w. 20(b)(ii)(C), 23(c), 28, and 29 of the Narcotic Drugs Psychotropic Substances Act, 1985 (hereinafter referred to as the 'NDPS Act'). On the side of the prosecution, PWs 1 to 5 were examined, and documents Exts. P1 to P39 were marked. Material objects were identified and marked as MOs 1 to 4. On the closure of prosecution evidence, the respondent/accused was examined under Section 313 Cr.P.C. Since there were no grounds to acquit the accused under Section 232 Cr.P.C., the respondent/accused was called upon to tender and adduce evidence, if any. However, no oral or documentary evidence was tendered on behalf of the respondent/accused. On a consideration of the matter, the trial court concluded that the prosecution had miserably failed in establishing that the bag/box in question was the bag/box checked in by the respondent/accused. The trial court also 2025:KER:56206 CRL.A NO. 38 OF 2024 5 found that Section 42 of the NDPS Act had not been complied with. The trial court further found that even before the NCB officials had arrived at the airport, the Customs officials who are authorised officers under the NDPS Act had already conducted a body search of the respondent/accused and that there is no whisper in the deposition of any of the prosecution witnesses or any document to show compliance with Section 50 of the NDPS Act. The trial court proceeded to find that the photographs produced by the prosecution were not properly proved, and the name of the photographer/ name of the studio was not known to any of the prosecution witnesses. It found that PW1 was not even in a position to state whether the photographs were taken with a digital camera or a film camera. The trial court found that the Magistrate who certified the inventory has not been examined as a witness in the case. The trial court found that there was a defect in the sampling and no representative samples had been taken from each of the separate packets, and this was in violation of Standing Order No.1/88 issued by the NCB. The trial court thus concluded that where the prosecution has failed to prove the compliance with the provisions of Sections 42, 50, and 57 of the NDPS Act, the accused cannot be convicted. Thus, on the finding that there is a severe lacuna in the prosecution case, the trial court acquitted the respondent/accused. It is thus that this appeal has 2025:KER:56206 CRL.A NO. 38 OF 2024 6 been presented before this Court by the Union of India.
4. Sri. R. Vinuraj, the learned Special Public Prosecutor appearing for the NCB, would contend that the trial court has erroneously acquitted the respondent/accused. It is submitted that Ext.P3 office note of the Customs and Ext.P8 letter from Indigo Airlines, together with Ext.P9 passenger manifest and Exts.P5 and P6 baggage claim tag and baggage tag, conclusively proved that the bag/box in question is that which was checked in by the respondent/accused. It is submitted that the finding of the trial court that there was non- compliance with the provisions of Sections 42, 50, and 57 of the NDPS Act cannot be sustained in law. It is submitted that, in the facts and circumstances of the case, the provisions of Section 42 of the NDPS Act will not apply. It is submitted that detection and seizure were made by the Customs officials based on suspicion, and in such circumstances, the compliance with Section 42 of the NDPS Act was not at all necessary. It is submitted that Section 50 relates to search of persons, and therefore, it does not apply in the facts of the present case as the detection and seizure of narcotic drugs was from a bag checked in by the respondent/accused. It is submitted that the provisions of Section 57 of the NDPS Act have been complied with. It is submitted that, in the above facts and circumstances, the judgment acquitting the 2025:KER:56206 CRL.A NO. 38 OF 2024 7 respondent/accused of all the offences alleged against him cannot be sustained in law.
5. The learned counsel appearing for the respondent/accused, however, contends that this is a case where the prosecution has miserably failed to connect the respondent/accused with the contraband in question. It is submitted that even going by the evidence tendered by PW1 (Intelligence Officer, NCB), it is found that by the time the said Officer has reached the CIAL in the early hours of 05.03.2019, the respondent/accused had already been searched by the Customs officials and his bag had also been opened. It is submitted that during cross-examination, PW1 had clearly stated in the box that Ext.P6 baggage tag had already been removed from the baggage by the time he reached the airport. He also stated that Ext.P5 baggage claim tag was also handed over to him by the Customs officials, and he has not seen even Ext.P5 being seized from the respondent/accused. Though PW1 denied the suggestion by the counsel for the respondent/accused that Exts.P5 and P6 do not show that the baggage belongs to the respondent/accused, he has deposed that there is no description on the baggage, that he has not seen the Customs officials apprehending the respondent/accused, that he has not checked the QR code affixed on MO2 (the trolley bag), that he does not remember the name of the 2025:KER:56206 CRL.A NO. 38 OF 2024 8 Customs Officer who handed over Exts.P5 and P6. He has further deposed that the bag had already been opened by the time he reached the airport. He stated that he was not sure as to who had opened the bag. He stated that he was not aware of any key being retrieved from the respondent/accused to open the baggage. It is submitted that Exts.P1 and P2 can only be concocted documents as they mentioned the substance to be 'Hashish' even before the same was tested. It is submitted that Ext.P3 does not improve the case of the prosecution as there is nothing in Ext.P3 which would connect the bag in question with the respondent/accused. She further relied on a Division bench judgment of this Court in Union of India v. State of Kerala & Ors (Crl. A. No. 655/ 2021) and contended that in a similarly situated case, this Court acquitted the accused for lack of sufficient evidence proving the baggage belonged to the accused. It is submitted that there is a clear failure to comply with the provisions of Sections 42, 50, and 57 of the NDPS Act; therefore, the appeal is liable to be dismissed. It is submitted that the judgment of the trial court must be sustained.
6. Having heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent/accused, I am of the opinion that the trial court has rightly concluded that the respondent/accused is entitled to be acquitted.
2025:KER:56206 CRL.A NO. 38 OF 2024 9 Having perused the records and having gone through the depositions of PWs 1, 2, and 3, it is clear that the crucial link to connect the respondent/accused with the baggage in question is missing in this case. It is true that the baggage claim tag, baggage tag, and boarding pass, etc., were seized and were produced in Court as Exts. P4, P5, and P6. However, PW1 has deposed that he had not seen the baggage tag being removed from the baggage in question. Assuming that the baggage tag was removed by the Customs officials, the prosecution failed to examine any of the Customs officials in the case. They also did not deem it necessary to examine any staff working for the Indigo Airlines or to procure and produce any CCTV image which would show that the bag in question had been checked in by the respondent/accused. PW1 clearly stated in the box that he was not aware of the name of the Customs official who had unlocked the bag. He stated that Ext. P6 baggage tag had already been removed from the bag by the time he reached the airport. He also stated in cross-examination that he had not seen Ext. P5 baggage claim tag being recovered from the possession of the respondent/accused. He also stated that he did not cross-check the bar code (stated as QR code in the judgment) on the bag (MO2). PW1 also could not state anything about any number lock or other lock on the baggage, and there was nothing to show that any key had been seized 2025:KER:56206 CRL.A NO. 38 OF 2024 10 from the respondent/accused or that he had provided information leading to the opening of the bag. Therefore, without going into any other question, including the question of compliance with the provisions of the NDPS Act, it must be held that the prosecution had miserably failed to prove that the bag from which the contraband was seized belonged to the respondent/accused and the said bag had been checked in by the respondent/accused to be carried on the Indigo flight in question from Kochi to Maldives. In that view of the matter, I find no infirmity whatsoever in the conclusion of the trial court that the respondent/accused is entitled to an acquittal. The appeal will, therefore, stand dismissed, confirming the findings of the trial court in S.C.No.780/2019 on the file of the Additional Sessions Judge-VII, Ernakulam.
Sd/-
GOPINATH P. JUDGE acd