The bench observed that the legal reasoning applied by the high court did not justify terminating the case, paving the way for the Judicial First Class Magistrate Court in Nedumangad to resume proceedings.
Published Nov 20, 2024 | 1:11 PM ⚊ Updated Nov 20, 2024 | 9:22 PM
Antony Raju. (Adv.AntonyRaju/Facebook)
In a major setback for former Kerala transport minister and MLA Antony Raju, the Supreme Court on Wednesday, 20 November, reinstated criminal proceedings against him in a case alleging evidence tampering in a drug smuggling trial from 1990.
The apex court overturned a Kerala High Court decision that had quashed the case on technical grounds.
A bench comprising Justices CT Ravikumar and Sanjay Karol held that the Kerala High Court erred in ruling that the proceedings were barred under Section 195(1)(b) of the Code of Criminal Procedure (CrPC).
The apex court directed to complete the trial within one year and Antony Raju — a Kerala Congress (Democratic) leader —will have to appear before the trial court on December 20
At the same time, Antony Raju’s counsel Deepak Prakash told the media that the Supreme Court order was a misjudgement as there were no eyewitness accounts and evidence.
Antony Raju said he would respond after receiving the order.
The bench also observed that the legal reasoning applied by the high court did not justify terminating the case, paving the way for the Judicial First Class Magistrate Court in Nedumangad in Thiruvananthapuram district to resume proceedings.
The controversy dates back to Antony Raju’s tenure as a junior lawyer representing an Australian national accused in a narcotics smuggling case.
The allegation was that Raju, in collaboration with a court clerk, conspired to tamper with evidence — a piece of underwear containing hashish that had been submitted to the court.
The accused was later acquitted after it was established that the underwear, which had been crucial evidence, was too small for the accused to wear.
It was alleged that Raju and the court clerk altered the garment to make it unsuitable for the accused, leading to his acquittal.
The case against Antony Raju and his current predicament stems from an Australian national, Andrew Salvatore Cervelli, bragging to a murder co-accused in Victoria in that country about how he had escaped a jail term in Kerala for smuggling hashish by bribing people.
The co-accused reported the conversation to the Victoria police, who alerted the Australian National Central Bureau (ANCB), which tipped off its Indian counterpart, the CBI. The central agency passed the information on to the Kerala police. This was in 1996.
More than half a decade earlier, on 4 April 1990, Cervelli had been arrested from the Trivandrum International Airport with 61.6 grams of the banned substance concealed in his underwear’s two pockets. He was about to board an Indian Airlines flight to Mumbai.
The Australian was subsequently booked under the Narcotic Drugs and Psychotropic Substances Act, 1985.
Antony Raju, then a junior working for counsel Selin Wilfred, represented the accused in the court. Meanwhile, Cervelli’s family members, too, reached Thiruvananthapuram, the state capital.
On 2 August 1990, the fast-track trial court found Cervelli guilty and sentenced him to 10 years of rigorous imprisonment, besides slapping a fine of ₹1 lakh.
The garment in which he had smuggled hashish was among the evidence submitted to the court.
Soon after, Cervelli moved the high court, challenging the lower court’s verdict.
In his appeal, he requested the court to revisit the material evidence submitted in the lower court, especially the underwear.
When the underwear was examined, it was found too small for the brawny Australian and it had no pockets to keep the narcotic substance.
A practical trial, too, was conducted, which confirmed that the garment did not fit the accused.
The prosecution case collapsed. The court acquitted Cervelli on 5 February 1991. In the first week of March, he took a Qantas flight home, “with no corresponding exit details”, the ANCB informed the Indian authorities.
While acquitting Cervelli, the court suspected a strong possibility that the underwear was “planted in an attempt to wriggle out of the situation”, and suggested an inquiry.
The court’s vigilance officer conducted an investigation and submitted a report, highlighting the need for a detailed investigation. The smuggling case’s investigating officer also approached the high court seeking a probe.
Subsequently, the Vanchiyoor police in Thiruvananthapuram registered a case about tampering with the evidence in 1994.
A charge sheet was filed two years later, a month before the Assembly polls of 1996.
It was the year Antony Raju contested the election from Thiruvananthapuram West on a Kerala Congress (J) ticket with the backing of the LDF and won.
The charge sheet filed before the Judicial First Class Magistrate Court at Nedumangad named a sessions court clerk, KV Jose, as the first accused and Raju as the second.
It alleged that Raju submitted an application to the sessions court on behalf of the Australian to release the latter’s personal belongings.
On getting a positive court order, the first accused, Jose, released the articles, including the underwear — a piece of crucial material evidence — from which the contraband was seized, to Antony Raju on 9 August 1990.
On 5 December 1990, Antony Raju reportedly returned the underwear, which was forwarded to the sessions court.
The sessions court did not conduct a practical trial of the underwear before convicting Cervelli. It is alleged that Antony Raju swapped the underwear before returning it.
Jose and Raju were charged with cheating (Section 420), conspiracy (Section 120-B), dishonestly inducing delivery of property/causing disappearance of evidence of offence (Section 201), the threat of injury to induce a person to refrain from applying for protection to a public servant (Section 190), and public servant disobeying direction of law with the intent to save a person from punishment or property from forfeiture (Section 217) of the Indian Penal Code.
As the case dragged on, social activist George Vattukulam approached the high court, requesting a faster trial.
Antony Raju, too, moved the high court, seeking an order to quash further court proceedings in the underwear case. He argued that the case must be quashed as the police directly registered it despite the rules mandating a formal complaint by the court or a court official.
On 10 March 2023, the High Court of Kerala quashed criminal proceedings against the minister on technical grounds.
However, the single bench of Justice Ziyad Rahman AA clarified in the order that “this would not preclude the competent authority or the court concerned from taking up the matter and pursuing the prosecution in compliance with the procedure contemplated under Section 195(1)(b) of the CrPC”.
The judge also observed that the charges against Raju included interfering with functions of the judiciary and polluting the justice administration mechanism.
While admitting the claims of Raju’s counsel that the existing investigation had not followed proper procedures, the judge ordered a new process ensuring a fresh and fair trial in the case.
The court observed, “The alleged act is a glaring occurrence where the process of criminal prosecution stands interfered with, impugning upon the sanctity of judicial proceedings, resulting in a travesty of justice.”
It then added, “Such actions not only erode public trust in the judicial system but compromise the principles of the rule of law and fairness, which are essential for the justice delivery system. Such incidents strike at the foundation of the independence and integrity of the judicial process, hence, it cannot be said that there is a lack of public interest herein.”
The court also went on to say, “In the peculiar circumstances obtained in this case where the accused allegedly received a material object in question, from the judicial custody, despite there being no specific order for release thereof, and subsequently tinkered/ assisted in tinkering with the same and thereafter substituted it for the original.”
(With inputs from Dileep V Kumar.)
