MUHAMMED BATHISHA K.S., vs STATE OF KERALA

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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
ND
WEDNESDAY, THE 2 DAY OF SEPTEMBER 2026/11TH BHADRA,
1948
CRL.A NO. 802 OF 2026
AGAINST THE ORDER DATED 29.05.2026 IN SC NO.79 OF
2021 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II,
KASARAGOD, KASARAGODE
APPELLANTS:
MUHAMMED BATHISHA K.S.,
AGED 42 YEARS
S/O SHEIKALI, R/AT MUBARAK MANZIL, KUKKAR,
MANGALPADY VILLAGE, NOW R/AT MISIRIYA MANZIL
QUARTERS, BAITHALA, MANGALPADY VILLAGE,
PIN - 67132
BY ADVS.
SRI.T.B.SHAJIMON
SMT.GOVINDU P.RENUKADEVI
RESPONDENT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.,
PIN - 682031
SRI. SAJEEV P K, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
11.08.2026, THE COURT ON 02.09.2026 DELIVERED THE
FOLLOWING:

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CR
JUDGMENT
nd
Dated this the 2 day of September, 2026
The sole accused in S.C.No.79/2021 on the files of
the Special Judge (Additional Sessions Court-II), Kasaragod,
has filed this appeal under Section 415(2) of the Bharatiya
Nagarik Suraksha Sanhita, 2023, challenging conviction and
sentence imposed on him in the said case, as per judgment
dated 29.05.2026.
2. Heard the learned counsel for the
appellant/accused and the learned Public Prosecutor in
detail. Perused the verdict under challenge.
3. Here, the prosecution alleges commission
of offence punishable under Section 20(b)(ii)B of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (hereinafter
referred to as 'NDPS Act' for short) by the appellant/accused.
The prosecution allegation is that, at about 18.45 hours on

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05.07.2020, the accused was found in conscious possession
of 4.2 kg of ganja for the purpose of sale, against the
prohibitions contained in the NDPS Act. Accordingly, he was
nabbed red-handed.
4. When final report was filed before the
Special Court, the Special Judge framed charge for the said
offence and proceeded with trial. During trial, PW1 to PW13
were examined, Exts.P1 to P30 and MO1 to MO5 series
were marked on the side of the prosecution. Apart from that,
Ext.C1 was also marked. No evidence was adduced on the
side of the defence.
5. On appreciation of the evidence, the
learned Special Judge found that the appellant/accused
committed the offence punishable under Section 20(b)(ii)(B)
of the NDPS Act. Accordingly, he was convicted and
sentenced as under:

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“87. Accused is sentenced to undergo
rigorous imprisonment for a period of 1 year and to pay a
fine of Rs.20,000/- (Rupees Twenty Thousand only) for
the commission of offence punishable u/s.20(b)(ii)(B) of
the Narcotic Drugs and Psychotropic Substances Act. In
default of payment of the above fine, the accused shall
undergo rigorous imprisonment for a further period of two
months.
88. Accused is entitled to get set off
from 05.07.2020 to 08.09.2020 u/s.428 of the Cr.P.C. As
against the substantive sentence imposed upon him.”
6. The learned counsel for the
appellant/accused submitted that the appellant/accused is
innocent and the prosecution case is in the midst of doubts.
The prime point argued by the learned counsel for the
appellant/accused is that, in this case, though the contraband
was alleged to be recovered on 05.07.2020, Ext.C1 Chemical
Analysis report (positive result) would show that the contraband
was examined in the laboratory only on 24.07.2023.
Therefore, the delay in examining the contraband by the

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Forensic Science Laboratory (FSL) is fatal to the prosecution.
The second point argued by the learned counsel for the
appellant/accused is that, though the detecting officer has
given evidence that samples weighing 25 gms each were
collected as S1 and S2, Ext.C1 chemical analysis report would
show the weight of S1 and S2 as 19.8256 gms and 21.8600
gms respectively. Therefore, the learned counsel contended
that the weight difference also raises doubt as regards the
contraband examined and the contraband forwarded to the
FSL for chemical examination. Therefore, the learned counsel
for the appellant/accused pressed for interference in the verdict
impugned to record acquittal of the accused.
7. The learned Public Prosecutor, on the other
hand, submitted that, in this case, the contraband was seized
on 05.07.2020 and produced before the Court on 06.07.2020
and therefore, there is no delay in producing the contraband
before the Court. It is also pointed out that, as per Ext.C1

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Chemical Analysis Report itself, it has been stated that S1
and S2 samples were forwarded to the FSL from the Court
on 22.07.2020 without any delay. Therefore, even though the
contraband was examined by the Scientific Expert only on
24.07.2023, the delay in examination of the contraband is not
fatal to the prosecution, as the same would usually happen
because of the pressure of work in the FSL. Regarding the
weight difference pointed out by the learned counsel for the
appellant/accused, the learned Public Prosecutor placed
decision of this Court in Sahid K. v. State of Kerala,
reported in 2026(2) KLD 190, wherein this Court addressed
the same issue in paragraph No.17, which reads as under:
“17. In addition to that, the learned counsel for the
appellants has placed another decision in Dehal
Singh and Another v. State of Himachal Pradesh
[2010 KHC 4631] which has been relied on by the
learned Special Judge to negate the contentions of

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the appellants regarding the weight difference in the
contraband. According to the learned counsel for
the appellants, the ratio in Dehal Singh's case
(supra), could not be applied in this case. On
reading the observations of the Apex Court in Dehal
Singh's case, referring to the judgment in Noor Aga
v. State of Punjab and Another [2008 KHC 5054]
and in paragraph 11, it was held as under;
“11. It is common knowledge that weighing
scale and weight kept in the grocery - shop
are not of such standard which can weigh
articles with great accuracy and therefore
difference of 15 gms. in weight, in the facts
and circumstances of this case, is not of much
significance. Sample was taken by a common
weighing scale and weight found in a grocery
shop, whereas the weight in the laboratory
recorded with precision scale. This would be
evident from the fact that the weight of the
sample recorded in the laboratory was
65.5606 gms. In this background, small
difference in weight loses its significance,
when one finds no infirmity in other part of the
prosecution story.”
Thus, weight difference in the sample collected to
be adjudged based on the facts in each case
considering the possibility of showing weight
difference by different weighing machines used and
the possibility of weight loss in between the date of

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collection and date of reaching the FSL due to
dryness of the contraband. When ganja is the
contraband, possibility of dryness is always there.
Most importantly, here the samples were collected
in a tamper proof manner and the expert never
opined any discrepancy in the samples reached the
FSL. Therefore, the weight difference of the sample
in this case is of no serious consequence.”
Thus, the learned Public Prosecutor pressed for dismissal of
this appeal.
8. Adverting to the rival contentions, the
questions arise for consideration are;
1. Whether the Special Judge is justified in
holding that the accused committed the
offence punishable under Section 20(b)(ii)
(B) of the NDPS Act.
2. Whether the impugned verdict would require
interference?
3. Order to be passed.

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9. Point Nos.1 to 3.
PW12 examined in this case is the then Sub
Inspector of Kumbla police station, who detected the crime.
PW7 is the accompanying officer. Here, the evidence of
PW12 and PW7 was given much emphasis by the learned
Special Judge, along with other evidence, including the
evidence of PW11, an attestor to Ext.P1 search list, and
PW2, an attestor to Ext.P2 seizure mahazar, to find
commission of offence under Section 20(b)(ii)(B) of the
NDPS Act by the appellant/accused.
10. PW12, the detecting officer, deposed that
he was working as the Sub Inspector of Kumbla Police
Station during the relevant period. According to him, at about
17.35 hours on 05.07.2020, while he was on duty in Kumbla
Police Station, he had received credible information to the
effect that Muhammed Badisha, the accused herein, had

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stored ganja in his house and was engaged in the sale of the
same. The said information was immediately entered in the
General Diary. The information was also immediately
conveyed to PW13, who was the Inspector of Kumbla Police
Station and the superior officer of PW12, over telephone. He
testified that Ext.P13(a) is the extract of the Information
recorded in the General Diary and, was despatched to PW13
through a Civil Police Officer, Sri.Harilal (CW10). Thereafter,
the advance search memorandum was prepared and
despatched to the court through PW2.
11. PW12 deposed further that, pursuant to the
secret information in this regard, he had proceeded to the
scene of occurrence, along with PW7 and the police party, in
department vehicle bearing No.KL. 01 CN 4189 at 17.45
hours. They reached the scene of occurrence, situated in
Mangalpady Village by 18 hours. The police party alighted

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from the vehicle in front of the house. Civil Police Officers
Santhosh, Sreekumar and Divya (CW5, CW7 and CW9
respectively) were posted by him in front of the said house
and the remaining police party proceeded to the back side of
the said house. They then saw a person wearing jeans and
shirt (the accused) coming out of the kitchen of the said
house holding a white colour plastic sack with handle in his
right hand. Then the said person was restrained. When
asked his name, he stated that he was Badisha. He was
informed that the police party had come to the place on
receiving reliable information that he was in possession of
narcotic drugs and that the said house and his person were
to be searched to verify the veracity of the said information.
He was further informed of his right to be searched
personally (body search) in the presence of a Magistrate or a
Gazetted Officer. Ext.P14 is the body search report regarding

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the information given to the accused of his right to be
personally searched in the presence of a Magistrate or a
Gazetted officer. Then for body search of the accused, PW1
was called and he had reached the scene of occurrence.
PW12 told PW1 about the storage of ganja in the house and
requested him to conduct body search of the police party.
12. PW12, PW7 and PW1 unanimously
deposed that PW1 introduced himself as the LR Tahsildar
who is a Gazetted Officer and searched body of PW12 and
the members of the police party who accompanied him, but
nothing objectionable was found. Then PW1 searched the
body of the accused and MO1 mobile phone and 4,000/-
₹
were recovered from him.
13. When MO3 sack found in possession of the
accused was opened and inspected, it was seen that the
same contained two bundles secured with tape. The bundles

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were opened using blade, it was found that the same
contained ganja. When asked whether the accused had any
documents authorizing him to possess ganja, he answered in
the negative. Then the accused was arrested after informing
him about the grounds of his arrest.
14. PW12 deposed that he had prepared Ext.P8
arrest memo and Ext.P15 inspection memo in this
connection. PW12 and PW1 further deposed that PW12 got
a weighing machine from the shop of PW8, which is situated
at Bandiyod, through CW7 (CPO 2320), and on receiving the
said weighing machine at 19.15 hours, PW12 transferred the
ganja to a polythene cover and weighed the same, and
confirmed its weight as 4.2 kilograms.
15. PW12 further deposed that the said ganja
along with the polythene cover was wrapped in a brown
paper cover. Thereafter, the same was affixed with labels

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signed by the accused, PW12, and the witnesses, and
marked as Ext.P1. MO2 series of empty covers, which earlier
contained ganja, were also packed, labelled, and sealed in
the same way and marked as Ext.P2. MO4 series, plastic
covers recovered by PW12 were also packed, sealed, and
labelled, and marked as Ext.P3. MO3 plastic sack which
contained the contraband was also packed, sealed and
labelled in the very same fashion and marked as Ext.P4.
The specimen impressions of the SHO seal using which the
contraband and other properties were sealed, were affixed
on a white paper which was in turn placed inside a brown
paper cover, sealed and labelled in the aforementioned
manner, and marked as Ext.P5. The said specimen seal
impression got identified as Ext.P16(a). MO1 mobile phone
and 4,000/- recovered from the accused were seized vide ₹
Ext.P1 search list. PW12, PW7 and PW1 identified the

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accused at the dock as the person who possessed the ganja.
PW12 identified MO1 to MO4 and MO3(a) label pertaining to
MO3 sack, and MO4 label pertaining to MO4 series of plastic
covers. Similarly, PW12 had identified MO2(b) as the label
affixed on Ext.P2. According to PW12, then he had returned
to the police station along with the accused person and the
contraband, and soon Ext.P18 FIR was registered.
16. He submitted Ext.P5 before the court vide
Ext.P19 Form 15. The properties seized by him were
submitted before the court vide Ext.P20 property list. PW12
also submitted Ext.P21 application before the Magistrate
requesting to certify the inventory. MO5 series (2 in numbers)
samples of ganja weighing 25 Grams each were drawn and
marked as S1 and S2 and the left over ganja weighing 4.150
Kilograms was marked as Ext.P6 and the same was seized
vide Ext.P21(a) Annexure Form. The certification issued by

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the learned Magistrate got identified as Ext.P21(b). Ext.P22
series of photographs were drawn regarding the procedure of
drawing of samples and certification of the inventory and
Ext.P23 identified as the CD containing Ext.P22 series of
photographs. PW12 submitted Ext.P24 report under Section
57 of the NDPS Act before his superior officer, who signed
thereon in acknowledgment of receipt. He also deposed that
he had submitted Ext.P25, his duty note book, to the
investigating officer.
17. In this case, PW2 is one of the then Civil
Police Officers attached to Kumbla Police Station. He
deposed that on 05.07.2020, PW13 entrusted to him the
advance search memorandum for searching a house, with
direction that the same be submitted to the court. PW2
submitted the same before the court on 06.07.2020. On
12.07.2020, Ext.P3, which is the certified copy of the General

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Diary, was seized vide Ext.P12 seizure mahazar, to which
PW2, PW13 and CW18 were signatories.
18. PW3 is an attestor to Ext.P4 scene
mahazar. He deposed that he and CW12 were present while
the police prepared Ext.P4 scene mahazar at Baithala and
that he and CW12 affixed their signatures on the said
mahazar between 11 am and 11.30 am. PW8 is the owner of
the shop from where the police collected the weighing
machine to weigh the contraband. He deposed that, he was
the owner of 'MA Stores' situated at Adukka and that on
05.07.2020 at 7 pm, the police obtained his weighing
machine and returned it to him later. He further deposed that
later on, the officials of the Legal Metrology Department also
enquired about the said weighing machine, and that he
handed over the records pertaining to the said weighing
machine to the police.

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19. The then ASI of Kumbla Police Station got
examined as PW9. He deposed that he was conversant with
the facts of the case and that he saw the investigating officer
seizing the duty note books of PW12 and the other police
officials who accompanied him at the time of the alleged
search, seizure and arrest vide Exts.P10 and P11 seizure
mahazars, to which he had affixed his signature as a witness
thereto. He further deposed that he saw PW12 submitting the
report under Section 57 of the NDPS Act to PW13.
20. PW10, an attestor to Ext. P11 seizure
mahazar, also was examined to prove the same. He deposed
that, on 08.07.2020, while working as a Senior Civil Police
Officer at Kumbla Police Station, he witnessed PW13 seizing
Exts. P9 and P25 duty notebooks of PW12 and PW7 under
Ext. P11 seizure mahazar, to which he had affixed his
signature as an attesting witness.

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21. The then Inspector of Kumbla Police
Station, the investigating officer was examined as PW13. He
deposed that on 06.07.2020, he had taken the investigation
of this case. On the said day, at 11 AM, PW12 showed him
the scene of occurrence and then he had inspected the
same and prepared Ext.P4 scene mahazar. As per Ext.P4,
the scene of occurrence was the western work area of a
double-storied building situated 200 metres to the north of
the Baithala – Panjathotty Road. He also deposed about the
investigation fully without any iota of ambiguity.
22. Here, as regards the recovery of 4.2 kg of
ganja, PW1, PW7 and PW12 gave categorical evidence
supporting the recovery. In fact, nothing was extracted to
disbelieve their versions. Apart from that, PW11, an attestor
to Ext.P1 search list, PW2, an attestor to Ext.P2 seizure
mahazar, PW4, who issued Ext.P5 certificate of legal

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metrology, PW5, the village officer who prepared Ext.P6 site
plan and PW6, the Secretary of Mangalpady Grama
Panchayat, who issued Ext.P7 building permit, also
supported the prosecution case.
23. Coming to the contentions raised by the
learned counsel for the appellant/accused that there was
delay in examining the contraband at the FSL, the
submission made by the learned counsel for the
appellant/accused is that though the seizure was on
05.07.2020, the samples S1 and S2 were examined by the
expert only on 24.07.2023 as stated in Ext.C1. It is true that
the contraband was examined at the laboratory on
24.07.2023. Now the question is, whether the delay in
examining the contraband in the FSL is fatal to the
prosecution. It is a fact known to all that, all the FSLs in the
State are flooded with material objects which would require

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scientific examination and therefore, it is not easy for the FSL
to examine the objects or samples within a time bound
manner or within a short span of time. Insufficiency of labs
and the pressure of work are the main reasons for the delay.
Here, Ext.C1 chemical analysis report would show that
contraband - S1 and S2 forwarded from the Court on
22.07.2020 and reached the laboratory soon. It was
endorsed by the expert in Ext.C1 that “it contained two
sealed brown paper packets, seals tallied with the specimen
seal impression given in the forwarding note and the seals
were intact. The packets were found marked as S1 and S2,
which were marked as item No.1a and b respectively in the
laboratory.” In this case, it is evident from Ext.P26 forwarding
note, proved through PW13, that the contraband seized on
05.07.2020 was produced before the Court on 06.07.2020
and the same was forwarded from the Court to the FSL on

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22.07.2020 without any delay. Thus, the delay in examining
the contraband, which was forwarded to the FSL in time,
without any possibility of tampering, for want of sufficient
infrastructure would not, by itself, is a reason to disbelieve
the prosecution case holding that the contraband examined
in the FSL was not one forwarded from the Court as nothing
has been brought out to find anything prejudicial to the
interest of the accused in the matter of examination of the
contraband as the item seized from him. Therefore, the said
contention cannot be countenanced.
24. Regarding the weight difference, when this
Court addressed the same question in Sahid's case ( supra ),
this Court took the view, as pointed out by the learned Public
Prosecutor and extracted hereinabove, that minor weight
difference of the sample is of no serious consequence due to
possibility of natural weight difference as discussed therein.

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In such a view of the matter, the weight difference is of no
serious consequence, since the contraband is ganja, for
which natural weight difference by efflux of time could not be
ruled out.
25. Thus, on re-appreciation of evidence, it is
held that the learned Special Judge has rightly found that the
accused committed the offence punishable under Section
20(b)(ii)(B) of NDPS Act and therefore, the said conviction
does not require interference.
26. Coming to the sentence, the report
submitted by the learned Public Prosecutor would show that
apart from the present crime, the appellant has involvement
in six other crimes. It is also noticed that after the
commission of the present crime, the appellant again
involved in another crime under the NDPS Act itself.
Therefore, this Court is not inclined to reduce the sentence,

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as the same is only justifiable in the circumstances of this
case. Thus the sentence imposed by the Special Judge also
is confirmed.
27. In the result, this appeal is dismissed,
confirming the verdict impugned.
28. The bail bond executed by the appellant is
cancelled with direction to the appellant/accused to surrender
before the Special Court, forthwith. On failure to surrender,
the Special Judge is directed to execute the sentence without
fail.
The Registry is directed to forward a copy of this
judgment to the Special Court, for information and further
steps.
Sd/-
A. BADHARUDEEN
JUDGE
nkr