- 1 - HC-KAR NC: 2025:KHC:20855 CRL.P No. 7519 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR CRIMINAL PETITION NO. 7519 OF 2025 (482(Cr.PC) / 528(BNSS)-) BETWEEN: SUJAN G M S/O MANOJ KUMAR AGED ABOUT 20 YEARS R/AT 88/C, MUNEESWARAN NILAYAM WOODLAND ENVIRONS KEEL KODAPMUND, UDHAGAMANDALAM, THE NILGIRIS TAMIL NADU- 643 002. …PETITIONER (BY SRI HITESH GOWDA B.J., ADVOCATE AND SRI. ADITYA D., ADVOCATE) AND: 1. STATE OF KARNATAKA BY MAINPAL POLICE STATION REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU -560 001. 2. NAGARAJA NAIK HC 1139 AGED ABOUT 41 YEARS WORKING AT MANIPAL POLICE STATION SHIVALLI, UDUPI-576104. …RESPONDENTS (BY SRI.NAGESHWARAPPA K., HCGGP FOR R-1 & R-2) Digitally signed by CHANDANA B M Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:20855 CRL.P No. 7519 of 2025 THIS CRL.P FILED U/S 482 CR.PC (FILED U/S 528 BNSS) PRAYING TO QUASHING OF ENTIRE PROCEEDINGS AGAINST THE PETITIONER / ACCUSED IN C.C.NO.785/2025 ARISING OUT OF CR.NO.0046/2025 DATED 19.03.2025 REGISTERED BY MANIPAL POLICE FOR THE OFFENCE P/U/S 27(B) OF NDPS ACT 1985 PENDING ON THE FILE OF THE HONBLE II ADDL.SENIOR CIVIL JUDGE AND A.C.J.M UDUPI. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR ORAL ORDER In this petition, the petitioner seeks the following reliefs: “WHEREFORE, the petitioner respectfully prays that this Hon’ble Court be pleased to quashing of entire proceedings against the Petitioner/Accused in C.C.No.785/2025 arising out of Crime No.46/2025 dated 19.03.2025 registered by Manipal Police for the offences punishable under Sec. 27(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985, pending on the file of the Hon’ble II Addl. Senior Civil Judge and A.C.J.M., Udupi, in the interest of justice.” 2. Heard learned counsel for the petitioner and learned counsel for the respondent and perused the material on record. 3. A perusal of the material on record will indicate that on 05.03.2025 at about 5:30 p.m., respondent No.2 apprehended the petitioner near Manipal Coin Circle and suspected that the petitioner was in intoxicated state and has consumed ganja and was sent to KMC, Manipal, Forensic Medical Division on 06.03.2025, which submitted a - 3 - HC-KAR NC: 2025:KHC:20855 CRL.P No. 7519 of 2025 report. Pursuant to which the respondent registered the impugned FIR in Crime No.46/2025, which is assailed in the present petition. 4. Learned counsel for the petitioner would invite my attention to the medical certificate issued by the Kasturba Hospital Laboratory, in order to point that that there are several discrepancies, inconsistencies and contradictions and the same is not conclusive as regards consumption of Marijuana by the petitioner. It is also submitted that Marijuana was not recovered from the petitioner. In view of the aforesaid contradictions, discrepancies and inconsistencies in the report issued by the Kasturba Hospital Laboratory, learned counsel for the petitioner submits that the petition may be allowed and the impugned proceedings be quashed in so far as the petitioner is concerned. 5. Per contra, learned HCGP submits that there is no merit in the petition and that the same is liable to be dismissed. 6. Before adverting to the rival contentions, it would be necessary to go through the Toxicology Report issued by Kasturba Hospital Laboratory, which reads as under: “MARIJUANA Urine sample tested positive for Marijuana (Lateralflow Immunochromatographic assay) - 4 - HC-KAR NC: 2025:KHC:20855 CRL.P No. 7519 of 2025 Lab Tests are for the information to the treating doctor only. Qualitative tests often show false negative and false positive results. The results should be correlated with clinical features. 7. The aforesaid lab report reveals that the same is inconclusive, inconsistent and contradictory, as is clear from the contents of the lab report. In addition thereto, no Marijuana was recovered from the custody of the petitioner. It is also pertinent to note that except the aforesaid lab report, which is on the basis of smell said to have emitted from the petitioner, the impugned report does not have any other basis so as to incriminate the petitioner for the alleged offences. 8. Under identical circumstances, in the case of Ibnu Shijil Vs. State of Karnataka – Crl.MC No.5852/2024, the High Court of Kerala held as under: “Can an investigating officer's olfaction be the sole basis for the prosecution of an accused alleging consumption of a narcotic drug? The aforesaid question arises for consideration in this petition to quash the criminal proceedings initiated against the petitioner. 2. Petitioner is the accused in C.C.No.43 of 2023, on the files of the Judicial First Class Magistrate's Court-III, Palakkad, alleging the commission of an offence under - 5 - HC-KAR NC: 2025:KHC:20855 CRL.P No. 7519 of 2025 Section 27(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act'). 3. Prosecution alleged that on 03.01.2023, the accused was found smoking a cigarette while seated on a rock, beside the Malampuzha Dam and when the complainant went towards him, he threw the cigarette into the dam. However, since the complainant smelt ganja from the breath of the accused, the crime was registered alleging offence under Section 27(b) of the NDPS Act. After investigation, the final report was filed alleging that the accused consumed ganja as the Investigating Officer identified its smell from breath and speech of the accused, thereby committing the offence alleged. 4. Sri. Adith Kiran, the learned counsel for the petitioner contended that the uncontroverted allegations in the final report cannot lead to conviction, as consumption of the narcotic drug as alleged, is not supported by any proof. It was submitted that the sense of smell by the Investigating Officer is not proof and in the absence of any forensic examination about what was consumed, the petitioner cannot be ultimately convicted and hence the prosecution is liable to be quashed. 5. Sri. C.N Prabhakaran, the learned Public Prosecutor, on the other hand, submitted that evidence in a prosecution can be documentary or oral and that there is nothing that restricts the right of the prosecution from adducing oral evidence to prove that the accused had consumed a narcotic drug. It was also stated that medical - 6 - HC-KAR NC: 2025:KHC:20855 CRL.P No. 7519 of 2025 evidence can also be adduced to justify the prosecution case and hence the jurisdiction under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ought not to be exercised. 6. While considering the rival contentions, it has to be borne in mind that the consumption of a narcotic drug is made punishable under Section 27 of the NDPS Act. The two sub-clauses of Section 27 of the NDPS Act indicate two types of punishments for consuming different narcotic drugs. The type of drug specified in Section 27(a) is different from those covered under Section 27(b) of the NDPS Act. This distinction assumes significance in the instant case, since neither the alleged cigarette nor the narcotic drug were seized. In the absence of seizure of any narcotic drug, it fails all comprehension as to how the prosecution would be able to prove its case even relating to the specific limb of Section 27 of the NDPS Act, the alleged offence falls. 7. The foundational facts in a prosecution for a criminal offence and the specific offending clause that is attracted by the alleged conduct are to be alleged and proved by the prosecution. In the absence of the contraband or the article containing the contraband or atleast a medical test to justify the allegation of consumption of a narcotic drug, it is impossible for the prosecution to prove the nature of the contraband. 8. The olfactory abilities of a person can at the most trigger a suspicion. 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 - 7 - HC-KAR NC: 2025:KHC:20855 CRL.P No. 7519 of 2025 cannot be conclusive. Sensory perception of human beings is not standardised or a constant and therefore that ability cannot be a substitute for proof. To identify the nature of the contraband on the basis of smell, that too, from the breath of a person cannot be a piece of acceptable evidence to justify a criminal prosecution. As noted earlier, it could be the basis for suspicion, but certainly not the sole basis for prosecution. If a person is permitted to be prosecuted on the mere basis of smell from his breath, it can lead to anomalous situations where the Investigating Officers would be able to rope in any person as an accused in an NDPS offence. 9. In the decision in Anurag Shaji v. State of Kerala [2023 KHC 9406], this Court had considered a case where the alleged contraband collected was not subjected to a forensic examination. In the said case, it was observed that in the absence of any forensic examination or a report from the expert regarding the nature of the contraband, the prosecution cannot be permitted to continue. 10. In the case on hand, the contraband article allegedly consumed was not recovered nor is there any medical evidence to justify the allegation. Hence, I am satisfied that the prosecution against the petitioner is an abuse of the court's process and must be interfered with. 11. Accordingly, the proceeding against the petitioner in C.C.No.43 of 2023 on the files of the Judicial First Class Magistrate's Court-III, Palakkad, arising out of Crime No.6 of 2023 of Malampuzha Police Station is hereby quashed. - 8 - HC-KAR NC: 2025:KHC:20855 CRL.P No. 7519 of 2025 The Crl.M.C. is allowed as above.” 9. In view of the aforesaid facts and circumstances and the order of the High Court of Kerala referred to supra, I am of the considered opinion that continuation of proceedings as against the petitioner would amount to abuse of process of law and same deserves to be quashed. 10. In the result, I pass the following: ORDER i) The petition is allowed. ii) The impugned proceedings in C.C.No.785/2025 (arising out of Crime No.46/2025 registered by respondent No.1-Police), pending on the file of the II Addl. Senior Civil Judge and A.C.J.M., Udupi, insofar as the petitioner is concerned, are hereby quashed. Sd/- (S.R.KRISHNA KUMAR) JUDGE BMC List No.: 1 Sl No.: 68