[S.276 CrPC] 'Permitting Filing Of Chief Affidavit Of Material Witness As Evidence In Criminal Case Prejudices Accused': Kerala High Court

The Kerala High Court recently acquitted a person after finding that the trial court accepted chief affidavits of witnesses as evidence against him in violation of Section 276 Cr.P.C.

As per Section 276 of the Code of Criminal Procedure, in trials before the Sessions Courts, the evidence of each witness has to be taken down either by the judge hearing the case or by his dictation in open court.

Justice Johnson John observed:

"Therefore, if the trial court permits the prosecution to file chief affidavit of a material witness as evidence in a criminal case against the accused, the same will cause serious prejudice to the accused, in as much as the entire contents of the chief affidavit can only be treated as an outcome of the leading questions put to the witness."

The appellant in this case was convicted by the trial court for the offences under Sections 22(b) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 for possessing contraband. Challenging the conviction, he approached the High Court.

Though the public prosecutor argued that the conviction the evidence of witnesses regarding arrest and seizure of the contraband from the accused is reliable, the Court felt that when oral evidence was not recorded as per the procedure in the Cr.P.C., conviction cannot be sustained.

Referring to the other provisions and Supreme Court decisions in Ekene Godwin and Another v. State of Tamil Nadu and Ashok v. State of Uttar Pradesh, the Court further observed that evidence ought to have been recorded in the presence of the accused or his lawyer.

The appellant also raised a contention that sample of the contraband was drawn by the detecting officer without following the procedure under Section 52A(ii) of the NDPS Act, which mandates that the process of drawing of samples has to be in the presence and under the supervision of the Magistrate. Additionally, the entire exercise of collecting the sample must be certified by the Magistrate.

Relying on Simarnjit Singh v. State of Punjab, which reiterated the position in Union of India v. Mohanlal & Anr, (2016) 3 SCC 379, the Court felt that the prosecution case was not proved beyond doubt.

Thus, it set aside the conviction and sentence passed by the trial court.

Case No: Crl. A. No. 447 of 2014

Case Title: Askaf v. Sub Inspector of Police, Sulthan Bathery and Anr.

Citation: 2025 LiveLaw (Ker) 546

Counsel for the appellant: Anand Mahadevan - State Brief, T.P. Santhosh Kumar

Counsel for the respondents: Alex M. Thombra - Public Prosecutor

Click to read/download judgment