Madras High Court
K.Senthilkumar vs State Through on 15 October, 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 12.09.2025
Pronounced on : 15.10.2025
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
CRL.A(MD).Nos.459 and 797 of 2023
and
Crl.MP(MD)Nos.14252 and 14399 of 2023
K.Senthilkumar ... Appellant/Accused No.1
(in Crl.A.(MD).No.459 of 2023)
Durairaj ... Appellant/Accused No.2
(in Crl.A.(MD).No.797 of 2023)
Vs.
State through,
The Inspector of Police,
NIB-CID Police Station,
Thoothukudi District.
(In Crime No.18 of 2020)
... Respondent/Respondent
Complainant
(In both appeals)
COMMON PRAYER: Criminal Appeals have been filed under Section 374 (2)
of Criminal Procedure Code, to call for the entire records and set aside the
judgment of conviction and sentence dated 31.05.2023 passed by the II
Additional Special Court for NDPS Act, Madurai, in C.C.No.99 of 2021, and
allow these appeals and acquit the appellants/accused.
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For appellant : Mr.V.Kathirvelu, Senior Counsel
for Mr.NA.Manimaran
(in Crl.A.(MD).No.459 of 2023)
: Mr.V.Kathirvelu, Senior Counsel
for Mr.K.Prabhu
(in Crl.A.(MD).No.797 of 2023)
For respondent : Mr.R.Meenakshi Sundaram
Additional Public Prosecutor
(In both appeals)
COMMON JUDGMENT
The appellants/A1 & A2 in C.C.No.99 of 2021 on the file of II Additional Special Court for NDPS Act, Madurai, have filed these appeals, challenging the conviction and sentence passed against them on 31.05.2023, under Sections 8(c) r/w 20(b)(ii)(C) of the NDPS Act, 1985.
2. Since the appellants in both the appeals were arrayed as accused in the same crime number, these appeals are taken up together for hearing and disposed by way of this common judgment.
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3.The brief facts of the case as follows:
On 15.08.2020, at about 08.45 a.m, the Sub-Inspector of police, Tiruchendur Police Station, P.W.1, received secret information about the smuggling of Ganja at Aavudaiyar Kulakkarai, Tiruchendur. P.W.1 reduced the same in writting under Ex.P.1 and submitted the same to his Superior Officer, P.W.2 and P.W.2 also permitted P.W.1 to proceed further in the case. Hence, P.W. 1 along with his team members went to the place of occurrence. The informant identified the persons and left the scene of occurrence. P.W.1 and his team found the first accused, who was riding a Pulsar Vehicle bearing Reg.No.TN-92-
C-8186 with two gunny bags and with the second accused as the pillion rider. They intercepted the appellants and introduced themselves as police officers and they were informed about their right to be searched before the Judicial Magistrate or the Gazetted officer as required under Section 50 of the NDPS Act. The accused consented to conduct the search by the officer himself and hence, P.W.1 conducted search and found two gunny bags. They opened the bags and found 48 pockets of Ganja and the total weight was 25.230 kg. Thereafter, they recovered the contraband after following the proceedure and took two samples from each packets (two samples 10 grams from each bag) and totally 96 samples S1 to S96 were taken and properly sealed the same. Thereafter, P.W.2 arrested 3/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:27:48 pm ) the appellants. The appellants also gave voluntary confession and the same were recorded. Thereafter, P.W.2 brought the appellants to the police station and registered in Crime No.345 of 2020 for the offence under Section 8(c) r/w 20(b)
(ii)(C), 29(1) and 25 of the NDPS Act under Ex.P.8. P.W.2 prepared a detailed report under Section 57 of NDPS Act and sent to his immediate superior. After that, P.W.2 remanded the accused along with contraband. After completing all the formalities, the learned Judicial Magistrate remanded the appellants. Thereafter, P.W.3 conducted investigation and filed the final report before the II Additional Special Court for NDPS Act, Madurai, and the same was taken on file in C.C.No.99 of 2021. The learned trial Judge issued summons to the accused and on their appearance, served the copies under Section 207 Cr.P.C. and framed the necessary charges and questioned the accused. The accused pleaded not guilty and stood for trial.
4. The prosecution, to prove the case, examined P.W.1 to P.W.4 and exhibited 17 documents as Ex.P.1 to Ex.P.17 and produced 145 material objects as M.O.1 to M.O.145. The learned trial Judge questioned the accused under Section 313 of Cr.P.C., proceedings by putting the incriminating evidence available against them. The accused denied the same as false and the case was 4/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:27:48 pm ) posted for examinationof the witnesses on the side of the appellants. On the side of the defence, no one was examined and no document was marked.
5. The learned trial Judge after considering the oral and documentary evidence, acquitted the appellants from the charges under Sections 25 and 29(1) of the NDPS Act and convicted them for the offence under Sections 8(c) r/w 20(b)(ii)(C) of the NDPS Act, 1985, and sentenced them to undergo 10 years Rigorous Imprisonment each and to pay a fine of Rs.1,00,000/- (Rupees One Lakh only) each in default, to undergo, 1 year Simple Imprisonment each.
6. Aggrieved over the same, the appellants have preferred these appeals. 7.1. The learned senior counsel appearing for the appellants would submit that there was no compliance under Section 42 of NDPS Act. In view of stringent punishment, the prosecution should have established that the mandatory procedure was duly complied with. But, according to the learned senior counsel, the prosecution in this case, has not complied the mandatory procedure apart from non-examination of material witnesses to prove the presence of the accused in the occurrence place.
5/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:27:48 pm ) 7.2. According to the learned senior counsel, P.W.1 received the secret information and he has not complied with the procedure as stipulated in Section 42 of Act and as per the judgment of the Hon'ble Supreme Court in the case of Karnail Singh Vs. State of Haryana reported in (2009) 8 SCC 539, the duty of the police officer is to make the entry in the General Diary Book and submit the information to the superior. In this case, the said compliance is doubtful on the ground that the General Diary was not produced and also the receipt of information by the superior is not established by examining the superior before the trial Court.
7.3. The learned senior counsel would further submit that the recovery was not proved in this case though as per the Hon'ble Supreme Court, there is no necessity to examine the independent witness. But, it is mandatory on the part of the prosecution to prove the recovery. In this case, the mahazar witness has not been examined. Therefore, the recovery of contraband from the appellants is doubtful.
7.4. The learned senior counsel would further submit that as per the contemporaneous document, the recovery was made at 09.15 a.m and arrest was made at 04.00 p.m. There was no proper explanation for the delay in arresting the accused when the recovery was made much earlier.
6/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:27:48 pm ) 7.5. The learned senior counsel would further submit that according to the prosecution, the appellants were arrested on 15.08.2020 at 04.00 p.m. But, they were produced before the learned Judicial Magistrate only on 16.08.2020, at 05.45 p.m. The said delay is also creating doubt over the recovery and arrest.
7.6. The learned senior counsel would further submit that there was inordinate delay of 10 days in producing of the contraband before the Special Court. There was no explanation over the said delay. Further, as per the the guidelines issued by the Central Government of India in para 2.2 of Standing Order No.1 of 1989, minimum quantity of 24 grams has to be taken. But, in this case, only 10 grams has been taken. Therefore, the said material violation is affecting the seizure of the sample.
7.7. The learned senior counsel would further submit that the place of occurrence is not properly proved. According to the information, it is 'Mt[ilahh; nfhtpy; Fsf;fiu'. The 'extent of the 'Mt[ilahh; nfhtpy; Fsf;fiu' is more than 3 ½ km. In the said circumstances, there was no proper depiction of the directions of 'Fsf;fiu', which creates doubt over the information recored. Further, 7/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:27:48 pm ) according to P.W.1, the recovery was made from 'kuj;jo'. There was no reference in the sketch and the observation mahazar to show the place of recovery namely, 'kuj;jo', which is situated at the bank of the pond namely, ' Mt[ilahh; Fsj;Jf;fiu'.
7.8. The learned senior counsel would further submit that according to the prosecution, the occurrence took place on 15.08.2020 i.e., the Independence Day. Hence, the presence of the police officers at the scene of occurrence at the material time i.e., 9 'O' Clock is highly doubtful.
7.9. Apart from that, the occurrence happened during the spread of Corona. Hence, there was restriction of movement. In the said circumstances, the case of the prosecution that the appellants assembled there with huge quantity of ganja is unbelievable. Even the vehicle stands in somebody's name and there was no investigation about the ownership of the vehicle.
7.10. Apart from that, the learned trial Judge acquitted the appellants from the charges under Sections 25 and 29(1) of the NDPS Act. After acquitting them 8/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:27:48 pm ) from the above said charges, and in the absence of proof of concious possession, convicting them for the offence under Section 8(c) r/w 20(b)(ii)(c) of the NDPS Act, is erroneous.
7.11. The learned senior counsel would further submit that as per Ex.P.12, FIR was registered at 22 hours. But, the FIR was received by the learned Judicial Magistrate at 10.30 a.m on 07.09.2020. Therefore, there is suspicion over the registration of FIR. Considering the above infirmities, the prosecution has not proved the case beyond reasonable doubt and hence, he prayed to allow these appeals by setting aside the conviction and sentence passed by the learned trial Judge.
8.1. The learned Additional Public Prosecutor on instructions and upon perusal of the records would submit that it is true that the two police officers, who had attested the mahazar have not been examined. But, the evidence of P.W.1 is cogent and trustworthy. Therefore, the learned trial Judge rightly passed the conviction and sentence by believing the evidence of P.W.1.
8.2. The learned Additional Public Prosecutor would further submit that the non-production of General Diary is not a material lapse to disbelieve the 9/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:27:48 pm ) evidence of P.W.1. The non-examination of superior/P.W.2 is also not a material when the record, which was produced before the Court clearly established the compliance under Section 42 of the Act. The discrepancies relating to the place of occurrence in the information recorded under Section 42 of the Act and the evidence of P.W.1 is immaterial when the recovered contraband was produced before the Court immediately on 16.08.2020.
8.3. The learned Additional Public Prosecutor would further submit that the Chemical Analysis Report reveals that all the seals of samples were intact. Therefore the prosecution clearly proved the case beyond reasonable doubt. Hence, he seeks for dismissal of the appeals.
9. This Court considered the rival submissions and also perused the records and the impugned judgment and the precedents relied upon by the appellants.
10.The question arising for consideration in these appeals is whether the prosecution has established the case beyond reasonable doubt against the 10/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:27:48 pm ) appellants and the conviction and sentence imposed by the learned trial Judge against the appellants can be sustained or not?
11. According to the prosecution, A1 to A4 conspired to purchase Charas (Cannabis Resin). It is popularly called as 'Ganja Silver'. A3 and A4 invested Rs.8 lakhs. A1 & A2 using the said amont, purchased 25.230 kg of Charas from the unknown persons and transported the same in a two wheeler bearing Reg.No.TN-92-C-8186 on 15.08.2020 at 09.00 a.m. When A1 & A2 carried the said 25.230 kg ganja in 2 gunny bags, P.W.1 and his team, intercepted the vehicle near the tree situated at bank of pond and recovered the contraband. The recovery was made in the presence of two Head Constables namely, Tmt.Chandrika and Tmt.Revathi under Ex.P.4, the seizure mahazar. According to P.W.1, he recovered the contraband in the prsence of the above said witnesses. But, however, the prosecution has not examined the said two recovery witnesses. The non-examination of the independent witnesses is not fatal to the prosecution as per the law laid down by the Hon'ble Supreme Court in Mukesh Singh Vs. State (Narcotic Branch of Delhi) reported in (2020) 10 SCC 120. But, the non-examination of the police witnesses to substantiate the place of recovery is a serious lapse. The NDPS Act provides harsh punishment. Therefore, the 11/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:27:48 pm ) prosecution ought to have proved the recovery beyond reasonable doubt by examining the material witnesses. The non-examination of the said witnesses, in the following circumstances of the case is fatal to the prosecution.
12.1. As rightly argued by the learned senior counsel for the appellants, the prosecution has not come forward with clear version about the place of the occurrence. According to the document, the recovery was made at 'Mt[ilahh; Fsk;'. But, P.W.1's evidence has stated that 'kuj;jo'. To prove the said 'kuj;jo' i.e., the place of the occurrence is situated near 'Mt[ilahh; Fsk;', there should be a reference about that place in the sketch and observation mahazar. But, no such place is shown. Therefore, there are material discrepancies between the evidence of P.W.1 and the Ex.P.4, seizure mahazar. In Ex.P.4, the place of the occurrence is stated as 'Aavudaiyar Kulakkarai, Paraman Kurichi Road, Tiruchendur'. But, in the evidence of P.W.1, it is stated as follows:-
'jpUr;bre;Jhh; gukd;Fo nuhL> Mt:[ilahh; Fsk; fiuapy; itj;J 15.08.2020 njjp 09.15' “rk;gt ,lkhd Mt:[ilahh;Fsk; fiuapy; kiwe;jpUe;J fz;fhzpj;J bfhz;oUe;j nghJ 09.00 kzpf;F o.vd;.92.rp.8186 vd;w gjpt[ vz; bfhz;l gy;rh; nkhl;lhh; irf;fpis bgah; tpyhrk; nfl;L bjhpe;j bre;jpy;Fkhh; j.bg.fdfuj;jpdk;> g{td; FoapUg;g[tpis> gHtpis mQ;ry;> fd;dpahFkhp khtl;lk; jw;nghJ fPHFQ;rd;tpis nuhL> vd;$pX fhydp> ehfh;nfhapy; vd;gth; Xl;o tu gpd;dhy; Jiuuh$; vd;gth; mkh;e;J ifapy; ,uz;L 12/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:27:48 pm ) rhf;Figapy; bghUSld; te;jth;fs; kuj;joapy;
rhf;Figfis ,wf;fp itj;J epdwth;fis vdJ
jftyhsp ,th;fs; jhd; ehd; brhd;d egh;fs; vd;W Twp
brd;Wtpl;lhh;.
12.2. It is necessary to prepare the sketch and observation mahazar distinctly pinpointing the place of the occurrence. Therefore, this creates doubt over the place of recovery i.e., 'bank of Aavudaiyarkovil pond' as alleged by the prosecution.
13. The recovery was made at 09.15 a.m. But, the arrest was made only at 04.00 p.m. There was no explanation on the side of the prosecution to explain the delay of 6 ½ hours. There is no explanation from P.W.1 relating to the delay of 6 ½ hours and the safe custody of the contraband and the accused in the said place. As per the evidence, P.W.1 received the secret information and recored the same in the General Diary. But, he has not informed the said information to his superior officer since the immediate superior officer was not present at that time.
Moreover, the General Diary, in which the secret information was recorded, was not produced before the trial Court. Usually the non-production of General Diary entry is not a material, but in this case, the specific case of P.W.1 is that his superior was not available to prove the receipt of information. Therefore, P.W.1 13/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:27:48 pm ) should have submitted the General Diary. In the case of the Karnail Singh Vs. State of Haryana reported in (2009) 8 SCC 539, the Hon'ble Supreme Court specifically directed the officer, who had received the information, to record the information in the General Diary and reduce the same in writing and submit the same to the superior. In this case, According to P.W.1, the superior officer was not present. Therefore, he made an entry in the General Diary. If he had reduced the information in writting and submitted to the superior, the production of the General Diary entry is not necessary. When the specific case of P.W.1 is that his superior was not present and hence, he made the General Diary entry and proceeded to the occurrence place with his team, the production of General Diary is essential one. Therefore, this Court without any hesitation takes adverse inference against P.W.1 and holds that the non-production of the General Diary to show the recording of the information creats a doubt and affects the substratum of the prosecution case and possession of the recovered contraband on the basis of the information furnished by the informant.
14. According to P.W.1, he took the samples from 48 separate bags and put the Station House Seal in each sample. But, the particulars of the seals were not 14/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:27:48 pm ) mentioned either in the athachi or in the report. The Chemical Analysis Report only contained the Court's seal. It is not clear about the presence of the Station House Seal on the sample bags. Therefore, the circumstances create doubt over the recovery of the contraband. The learned trial Judge, acquitted the appellants under Section 29(1) and 25 of the NDPS Act. The learned trial Judge has held that the conspiracy between the appellants and the remaining accused was not established.
15. It is the specific case of the prosecution that A3 & A4 gave Rs.8 lakhs to A1 & A2 to purchase the recovered contraband and the same was transported in a two wheeler bearing Reg.No.TN-92-C-8186. The Investigating Officer has not conducted any investigation relating to the ownership of the said vehicle. Therefore, the learned trial Judge acquitted the appellants under Sections 29(1) and 25 of NDPS Act. In view of the acquittal under Sections 29(1) and 25 of the NDPS Act, there is heavy burden on the prosecution to prove the possession. According to the learned Additional Public Prosecutor, except P.W.1, no other witnesses have been examined to prove the recovery, for taking of samples, for arrest of the accused and for production of the accused before the immediate superior.
15/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:27:48 pm ) 15.1. In the case of sole witness, the Hon'ble Supreme Court has laid the following three principles in the case of Vadivel Thevar Vs. State of Tamilnadu reported in AIR 1957 SC 614:-
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
15.2. As per the law laid down by the Hon'ble Supreme Court, the evidence of P.W.1 does not come under the category of “wholly reliable testimony”. Hence, the infirmity and inconsistency in the evidence of P.W.1 and the non-examination of the remaining witness was attested to the mahazar/Ex.P.4 is fatal to the prosecution and the conviction on the basis of the sole witness cannot be made. Therefore, this Court without any hesitation holds that the prosecution never proved the recovery of contraband from the appellants.
16. Further, the appellants were arrested on 15.08.2020 at 04.00 p.m & 04.15 p.m respectively. But, they were produced before the learned Judicial 16/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:27:48 pm ) Magistrate only on 16.08.2020 at 05.45 p.m though the distance between the Police Station and the Court is only 1 km. The delay in producing the accused before the learned Judicial Magistrate was not properly explained. During the cross-examination, P.W.1 stated that due to the night hours, he did not produce the accused for remand. That is not a legally acceptable explanation. As per Law, the accused should be produced before the learned Judicial Magistrate within 24 hours from the time of arrest. In this case, the accused were surrounded by P.W.1 and his team at 09.15 a.m on 15.08.2020. During the said period, there was restriction due to corona pandemic. Therefore, the presence of the accused in the place of the alleged occurrence during the restricted period of corona itself creates doubt.
17. Yet another circumstance pleaded by the learned senior counsel is the material time i.e., between 08.45 a.m and 09.15 a.m on 15.08.2020, was Independence Day celebration. Hence, the presence of P.W.1 at the occurrence place, without any corroborative evidence is highly doubtful. According to the learned senior counsel, due to the Independence Day, all the police officials would have been present in the police station for attending the program of hoisting the national flag. Therefore, the presence of P.W.1 at the occurrence 17/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:27:48 pm ) place, should have been proved through the examination of the remaining witness namely, Tmt.Chandrika and Tmt.Revathi.
18. Further, there was no explanation for the delay of 10 days in producing the contraband before the said Court. Normally, the said delay in producing the contraband before the said Court is not a ground to disbelieve the evidence of recovery witness. In this case, P.W.1 alone was examined. According to the learned Additional Public Prosecutor, his evidence is co-gent and trustworthy. Therefore, without any corroboration, the conviction can be made. The said proposition of the learned Additional Public Prosecutor can be accepted only in the circumstance if the evidence of P.W.1 is without any infirmity on the material particulars of the case. But, in this case, his evidence is with infirmities and inconsistencies. Therefore, this Court holds that the prosecution has not proved the case beyond reasonable doubt.
19. The learned senior counsel submitted that the FIR, Ex.P.12, was registered on 07.09.2020 at 22.00 hours (10.00 p.m). But, the same was received by the Court only at 10.30 p.m. It is the case of the prosecution that the time in the FIR, EX.P.12 was mentioned mistakenly. But that has not been proved. 18/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:27:48 pm ) Therefore, this is an additional circumstance to disbelieve the evidence of the prosecution in respect of the recovery of contraband from the appellants.
20. Even as per the evidence of the police officers, they have not conducted any investigation relating to the ownership of the vehicle. Therefore, in view of the above circumstances, this Court holds that the prosecution has failed to prove the case against the appellants. Hence, the appellants are entitled to acquittal.
21. Accordingly, the appeals are allowed on the following terms:
21.1.The judgment passed by the II Additional Special Court for NDPS Act, Madurai, in C.C.No.99 of 2021, dated 31.05.2023, is set aside.
21.2.The appellants are acquitted from all the charges in C.C.No.99 of 2021, on the file of the II Additional Special Court for NDPS Act, Madurai.
21.3.Fine amount paid by the appellants shall be refunded to the appellants forthwith.
21.4.Bail bond executed by the appellants shall stand cancelled.
- Consequently, the connected miscellaneous petitions are closed.
19/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:27:48 pm ) 15.10.2025 NCC :Yes/No Internet :Yes/No Index :Yes/No dss/sbn To:- 1. The II Additional Special Court for NDPS Act, Madurai. 2. The Inspector of Police, NIB-CID Police Station, Thoothukudi District. 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. 4.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai. K.K.RAMAKRISHNAN, J., dss/sbn 20/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:27:48 pm ) CRL.A(MD).Nos.459 and 797 of 2023 and Crl.MP(MD)Nos.14252 and 14399 of 2023 15.10.2025 21/21
https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:27:48 pm )