Read Time: 10 minutes

Synopsis

The Supreme Court has allowed criminal proceedings against Kerala MLA Antony Raju for his "glaring act" of fabricating evidence which resulted into acquittal of an Australian national in a 1990 drug trafficking case, affecting sanctity of judicial proceedings and resulting in a travesty of justice.

A bench of Justices CT Ravikumar and Sanjay Karol restored the criminal proceedings on the files of Judicial First Class Magistrate-I, Nedumangad, holding the interference by the High Court in the matter to be "unwarranted".

As per the top court, the alleged forgery of evidence in a criminal investigation resulted in acquittal in an NDPS case and, the interference by the High Court in quashing the criminal proceedings was unwarranted.

"The proceedings in the case at hand emanate from nearly two decades ago. Therefore, in the interest of justice, we deem it appropriate to direct the Trial Court to conclude the trial within a period of one year from today," the bench said.

Top court has now directed the accused to appear before the Trial Court on December 20, 2024. On April 4, 1990, an FIR came to be registered under Section 20(b)(ii) of the Narcotics Drugs and Psychotropic Substances Act, wherein an Australian national, Andrew Salvatore, was travelling from Thiruvananthapuram to Mumbai.

While undergoing frisking at the airport, he was found to be in possession of 2 packets containing 55 grams and 6.6 grams of charas, which were kept concealed in the pocket of his underwear. On registration of the FIR, the person, along with the seized articles and personal belongings, were kept in the custody of the Valiyathura Police Station.

The seized articles were produced before the Judicial First Class Magistrate–II, Thiruvananthapuram. Accused No 1 was the Clerk, in the custody of whom, by virtue of a judicial order, the articles were entrusted. Thereafter, on July 17, 1990, an application was made on behalf of Andrew Salvatore, seeking the release of his personal belongings, which came to be permitted.

Accordingly, the articles were released to accused No 2/appellant, who was the junior lawyer of the counsel appearing for Andrew Salvatore. Pertinently, one of the items of the case property, i.e., the underwear of Andrew Salvatore, was also released along with the personal articles directed to be released by the Court. However, later, the underwear was returned by Accused No 2 to Accused No.1, which was forwarded to the Sessions Court.

The Sessions Court convicted Andrew Salvatore and sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs one Lakh under Section 20(b)(11) of the NDPS Act, 1985.

An appeal was preferred before the High Court of Kerala. During the course of hearing, a practical test was conducted, and it was found that the said underwear was not the size of the convicted person. Therefore, by its judgment and order of February 5, 1991, the High Court while acquitting Andrew Salvatore, observed that “there is a strong possibility of the underwear being planted in an attempt to help the appellant to wriggle out of the situation. I hope that this matter will be duly enquired into and dealt with properly by the concerned authorities… A copy of this judgment be forwarded to the Chief Secretary for appropriate action.”

Thereafter on October 5, 1994, an FIR was lodged stating the accused cheated the court by destroying the evidence and committed the offence.

It stated that Accused No 1, Clerk handed over the underwear to Accused No 2, Antony Raju, who made alterations thereto, ensuring that it would not fit Accused Andrew Salvatore. Cognizance of this final report came to be taken by Judicial First Class Magistrate Court-I, Nedumangad.

In the year 2022, both these accused persons preferred separate petitions before the High Court of Kerela under Section 482 of the CrPC seeking quashing of the proceedings on the ground that cognizance in the present case could not have been taken due to the bar created under Section 195(1)(b) of the CrPC.

Resultantly, the impugned order came to be passed, allowing the petitions and thereby quashing the order taking cognizance and all further proceedings on the files of Judicial First Class Magistrate-I, Nedumangad.

Top Court held it was incumbent upon it to check the correctness of the approach adopted by the High Court, and the locus of the appellant would not come in the way of the same.

Dealing with the issue of the bar of prosecution under Section 195(1)(b) of the CrPC, the bench said, the High Court, on the basis of the bar on taking cognizance, has quashed the order taking cognisance and proceedings emanating therefrom.

Court noted the High Court stated that in this case, the final report came to be filed on the basis of an administrative order and not a judicial one. "We are unable to agree with the reasoning of the High Court on this aspect," the bench said.

Case Title: MR Ajayan vs. State of Kerala & Ors