Underwear swap in drug case: High Court can order its own probe, says SC

The underwear didn't fit the accused. The High Court ordered an inquiry. Then it said it couldn't take cognizance of the tampering charge. The Supreme Court just reversed that.

In 1990, an Australian national walked through Thiruvananthapuram airport with charas hidden in his underwear. He was caught, convicted, and sentenced to ten years. But when the case reached the Kerala High Court on appeal, something strange happened. The key piece of evidence — the underwear itself — was brought into court. It didn't fit the man who had been wearing it.

That single mismatch opened a rabbit hole that would take three decades to close.

When the underwear didn't fit

Andrew Salvatore, an Australian, was arrested at Thiruvananthapuram airport in 1990. The Narcotic Drugs and Psychotropic Substances Act case (FIR No.60/1990) was straightforward: charas found in his underwear, he was convicted by the Sessions Court in Thiruvananthapuram and sentenced to ten years of rigorous imprisonment and a fine of one lakh rupees.

But on appeal, the Kerala High Court noticed something the trial court had missed. The underwear — marked as material object Mo2 — did not fit the accused. It was too small, or too large, or simply not the same garment that had been seized. The High Court acquitted Salvatore in February 1991. But it didn't stop there. It directed an inquiry into how the exhibit had been tampered with while in judicial custody.

That judicial direction set off a chain of events that would end up before the Supreme Court thirty-three years later.

The investigation that took twelve years

Based on the High Court's direction, an investigation began. By October 1994, a fresh FIR (No.215/1994) was registered at Valiyathura Police Station in Thiruvananthapuram. The target: a court clerk and a junior advocate named Antony Raju, who were accused of conspiring to replace the underwear while it was in the court's custody.

The charges were serious. Criminal conspiracy (Section 120B of the Indian Penal Code — an agreement between two or more persons to commit an illegal act). Cheating (Section 420 IPC — deceiving someone to cause wrongful gain or loss). Causing disappearance of evidence (Section 201 IPC — destroying or concealing evidence to shield an offender). Giving false evidence (Section 193 IPC — fabricating false evidence in a judicial proceeding). A public servant disobeying the law (Section 217 IPC — a government official willfully disobeying a legal direction). And common intention (Section 34 IPC — shared criminal intent).

But the police took their time. The chargesheet wasn't filed until March 2006 — twelve years after the FIR. The Judicial First Class Magistrate at Nedumangad took cognizance of the case in 2014, assigning it number C.C. No.811/2014.

The High Court's own trap

Both accused — the court clerk and the junior advocate — approached the Kerala High Court to have the proceedings quashed. Their argument was technical but powerful. Section 195(1)(b) of the Criminal Procedure Code (a provision that bars a court from taking cognizance of certain offences against public justice unless the court itself files a complaint) stood in the way. They argued that since no complaint had been filed by the court that had custody of the evidence, the magistrate could not have taken cognizance. The proceedings, they said, were void from the start.

The Kerala High Court agreed. In March 2023, it quashed the cognizance order and all proceedings. But here's where it got interesting: the High Court didn't just dismiss the case. It directed that "de novo steps" be taken under Section 195 — meaning the court itself would now have to file a fresh complaint. The accused had won the battle, but the High Court had opened a new front.

Who can appeal when the High Court says no?

Enter M.R. Ajayan. He wasn't the accused. He wasn't the victim. He was a third party — someone who believed the tampering of evidence struck at the foundation of justice. He filed a special leave petition under Article 136 of the Constitution (the Supreme Court's discretionary power to hear appeals from any court or tribunal).

The first question the Supreme Court had to answer was whether a stranger to the case could even file an appeal. The accused argued that Ajayan had no locus standi (the legal right to bring a case) — he wasn't affected by the quashing order.

The Supreme Court disagreed. Citing P.S.R. Sadhanantham v. Arunachalam (1980), it held that a third party with a bona fide interest — especially in cases involving interference with judicial processes — has the right to appeal under Article 136. The integrity of the justice system, the Court said, is everyone's concern.

Why the Section 195 bar didn't apply

On the main question, the Supreme Court turned to two key precedents: Perumal v. Janaki (2014) and CBI v. M. Sivamani (2017). The Court held that when criminal proceedings originate from a judicial order or direction of the High Court itself — as they did here, when the High Court directed the inquiry into the tampering — the bar under Section 195(1)(b) does not apply.

The reasoning was elegant. The High Court, as a constitutional court with superintendence powers, is competent to exercise jurisdiction under Section 195(1). Its direction to investigate the tampering was equivalent to a complaint by the court. The accused couldn't hide behind a technical bar when the very court that had ordered the inquiry was the one whose authority was being invoked.

The Court also rejected the argument that there was a distinction between a "judicial order" and an "administrative order" for purposes of Section 195. The statute and precedent, it said, do not support such a distinction.

What the Supreme Court ordered

On November 20, 2024, a bench of Justice Sanjay Karol and Justice C.T. Ravikumar set aside the Kerala High Court's order. The cognizance order in Crime No.215/1994 and all proceedings in C.C. No.811/2014 were restored to the file of the Judicial First Class Magistrate at Nedumangad. The trial must be completed within one year. The accused are to appear on December 20, 2024.

The special leave petition filed by the accused (Antony Raju) was dismissed. The petition filed by M.R. Ajayan was allowed.

THE PLAY: When a High Court orders an inquiry into evidence tampering, its judicial direction serves as a valid complaint under Section 195 CrPC — the bar against taking cognizance does not apply, and the trial can proceed.

Three decades after a pair of underwear that didn't fit, the case is back where it started: a magistrate's court in Nedumangad, with one year to finish what began in 1990.