Underwear evidence tampering case against ex-Kerala Minister Antony Raju restored by Supreme Court

The case dates back to 1990 when an Australian man named Andrew Salvatore Cervelli was arrested at the Thiruvananthapuram airport for allegedly smuggling

The Supreme Court on Wednesday restored the alleged "underwear" evidence tampering case against former Kerala Minister Antony Raju.

A bench of Justices C.T. Ravikumar and Sanjay Karol set aside the order of the Kerala High Court which had quashed the criminal proceedings on the ground that for the offence in question, the courts below could not have taken cognisance based on a police report.

In its impugned decision, the Kerala High Court had clarified that its order would not be a bar on pursuing prosecution as per the provisions of Section 195(1)(b) of the Code of Criminal Procedure (CrPC) and left open the initiation of fresh action and prosecution against Raju for falsifying evidence.

Now, the Supreme Court restored the trial court order taking cognisance of the police charge sheet and directed the completion of the trial within a year. The top court asked Raju to appear before the trial court on December 20.

The case dates back to 1990 when an Australian man named Andrew Salvatore Cervelli was arrested at the Thiruvananthapuram airport for allegedly smuggling 61.5 grams of contraband by concealing it in his underwear. Raju, who had just begun his political career and was a young lawyer practising in Kerala, represented Cervelli first before the trial court, which convicted him and sentenced him to 10 years imprisonment. However, when he moved the High Court in appeal, the underwear in question was found to have been way too small to fit Cervelli and he was acquitted.

But things changed after a few years of Cervelli returning to his home country, and based on information received from the Australian National Central Bureau, the investigating officer in the smuggling case approached the High Court seeking a probe to find out if there was any tampering of evidence.

Soon, a criminal complaint was registered against Raju and a court clerk in 1994 and after 12 years of investigation, in 2006, the Assistant Commissioner of Police filed a charge sheet before the Additional Chief Judicial Magistrate Court, Thiruvananthapuram, alleging offences under charges of criminal conspiracy, cheating and dishonestly inducing delivery of property, and causing disappearance of evidence of the offence.

It was Raju's argument that the crucial piece of "underwear" evidence was in the custody of the trial court while it was allegedly tampered with and, therefore, it should have been the court in question that initiated the action, but in this case, the proceedings were initiated on the complaint of the police. His plea pointed out that the court took cognisance of the case upon a charge sheet by the police and the police have no authority to conduct an investigation in such cases. The police also cannot file a charge sheet before the court and the proceedings pending before the court is 'non-est' (one that can be ignored altogether) in the eye of the law, he had argued.