Police officer’s smell test for Ganja can't be sole basis of prosecution: Kerala High Court in NDPS case

The Kerala High Court recently quashed criminal proceedings initiated against a man accused under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act), based solely on an investigating officer's sense of smell. [Ibnu Shijil v. State of Kerala].Justice Bechu Kurian Thomas highlighted the potential misuse of the NDPS Act if such prosecution is allowed."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," the order stated..On January 3, 2023, the accused Ibnu Shijil was found smoking a cigarette near the Malampuzha Dam. The investigating officer registered a case under Section 27(b) of the NDPS Act (punishment for consuming narcotic drugs or psychotropic substances). It was alleged that the cigarette contained ganja (marijuana), based solely on the smell detected from the accused's breath and his manner of speaking.Aggrieved by the criminal proceedings initiated against him, the accused approached the Kerala High Court to quash the case..The petitioner's counsel argued that neither the cigarette nor any narcotic substance was seized by the police, and even forensic examination was not conducted. He contended that relying solely on the investigating officer's sense of smell was insufficient to prove the consumption of a narcotic drug.However, the Public Prosecutor argued that oral evidence was sufficient in criminal cases and that the prosecution was within its rights to present such evidence. He also asserted that medical evidence could be introduced to support the case..The Court observed that the prosecution's case relied solely on the investigating officer's claim of smelling ganja from the accused's breath. It also noted the absence of any seized contraband or medical evidence, making it impossible for the prosecution to substantiate its claims.It held that sensory perception, particularly smell, is not sufficient evidence to prosecute someone for drug consumption."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 cannot be conclusive. Sensory perception of human beings is not standardised or a constant and therefore that ability cannot be a substitute for proof," the judge added..It thus quashed the proceedings against the accused, highlighting that the prosecution's reliance on smell alone was an abuse of the legal process..The accused was represented by Advocates Adith Kiran RS and Nandagopal S Kurup.Public Prosecutor CN Prabhakaran appeared for the State..[Read Order]