Madras High Court
Mareeswaran vs The State Of Tamil Nadu on 3 October, 2023
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 27.09.2023
Pronounced on : 03.10.2023
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 & 577 of 2023
and
Crl.M.P(MD)Nos.9389 of 2022 and 6730 of 2023
Crl.A(MD)No.492 of 2022:
Mareeswaran .. Appellant /Accused No.3
Vs.
The State of Tamil Nadu,
represented by
The Inspector of Police,
Karimedu Police Station,
Madurai.
(Crime No.1403 of 2020) .. Respondent / Complainant
PRAYER: Criminal Appeal filed under Section 374 of Criminal
Procedure Code, to call for the records relating to the judgment dated
22.07.2022 in C.C.No.267 of 2020 on the file of the learned
II-Additional Special Court for EC and NDPS Act cases, Madurai and set
aside the same.
Page 1/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
For Appellant : Mr.M.Jagadeesh Pandian
For Respondent : Mr.T.Senthil Kumar
Additional Public Prosecutor
Crl.A(MD)No.500 of 2022:
Balaji .. Appellant/Accused No.6
Vs.
The State of Tamil Nadu,
represented by
The Inspector of Police,
Karimedu Police Station,
Madurai.
(Crime No.1403 of 2020) .. Respondent / Complainant
PRAYER: Criminal Appeal filed under Section 374 of Criminal
Procedure Code, to call for the records relating to the judgment dated
22.07.2022 in C.C.No.267 of 2020 on the file of the Learned II-
Additional Special Court for EC and NDPS Act cases, Madurai and set
aside the same.
For Appellant : Mr.M.Jagadeesh Pandian
For Respondent : Mr.T.Senthil Kumar
Additional Public Prosecutor
Crl.A(MD)No.347 of 2023:
Kalimuthu @ Vellaikali .. Appellant/Accused No.1
Vs.
Page 2/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
The State of Tamil Nadu,
represented by
The Inspector of Police,
Karimedu Police Station,
Madurai City.
(Crime No.1403 of 2020) .. Respondent / Complainant
PRAYER: Criminal Appeal filed under Section 374 of Criminal
Procedure Code, to call for the records relating to the judgment and
conviction dated 22.07.2022 in C.C.No.267 of 2020 on the file of the
Learned II-Additional Special Court for EC and NDPS Act cases,
Madurai and set aside the same.
For Appellant : Mr.R.Pon Karthikeyan
For Respondent : Mr.T.Senthil Kumar
Additional Public Prosecutor
Crl.A(MD)No.577 of 2023:
1.Karthick @ Ahori Karthick
2.Mari Muthu @ Dory Mari .. Appellant/Accused Nos.4 &5
Vs.
The State of Tamil Nadu,
represented by
The Inspector of Police,
Karimedu Police Station,
Madurai City.
(Crime No.1403 of 2020) .. Respondent / Complainant
Page 3/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
PRAYER: Criminal Appeal filed under Section 374 of Criminal
Procedure Code, to call for the records relating to the judgment and
conviction dated 22.07.2022 in C.C.No.267 of 2020 on the file of the
Learned II-Additional Special Court for EC and NDPS Act cases,
Madurai and set aside the conviction and sentence imposed on the
appellants.
For Appellant : Mr.J.Vijayaraja
For Respondent : Mr.T.Senthil Kumar
Additional Public Prosecutor
COMMON JUDGEMENT
Since these criminal appeals are arising out of the same crime,
these appeals are taken up for hearing together and disposed of by way
of common judgment.
The appellants are said to have committed the offence under
Sections 8(c) r/w 20(b)(ii)(C), 25 and 29(1) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS
Act') for the alleged possession of 25 kg of Ganja. The II Additional
Special Court for NDPS Act Cases, Madurai convicted the appellants in
Page 4/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
Spl.C.C.No.267 of 2020 under Section 8(c) r/w 20(b)(ii)(C) of NDPS Act
by its judgment dated 22.07.2022 and sentenced them to undergo 10
years Rigorous Imprisonment and pay a fine of Rs.1,00,000/- each, in
default to undergo 1 year Simple Imprisonment each for the offence
under Sections 8(c) r/w 20(b)(ii)(C) of the NDPS Act. Challenging the
same, the appellants filed these criminal appeals.
Crl.A. C.C.No. Rank of Conviction Sentence Fine amount
(MD)No. the under with default
accused Section sentence
499 of 2022 267 of Accused 8(c) r/w 10years Rs.1,00,000/-
2020 No-3 20(b)(ii)(C) Rigorous each, in
of NDPS Imprisonment default to
Act undergo 1
year Simple
Imprisonment
347 of 2023 267 of Accused 8(c) r/w 10years Rs1,00,000/-
2020 No-1 20(b)(ii)(C) Rigorous each, in
of NDPS Imprisonment default to
Act undergo 1
year Simple
Imprisonment
500 of 2022 267 of Accused 8(c) r/w 10years Rs1,00,000/-
2020 No-6 20(b)(ii)(C) Rigorous each, in
of NDPS Imprisonment default to
Act undergo 1
year Simple
Imprisonment
Page 5/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
577 of 2023 267 of Accused 8(c) r/w 10years Rs1,00,000/-
2020 Nos-4 & 20(b)(ii)(C) Rigorous each, in
5 of NDPS Imprisonment default to
Act undergo 1
year Simple
Imprisonment
Brief facts necessary for disposal of this appeal, are as follows:
2. According to the prosecution, the appellants have conspired
together to procure Ganja from Tenkasi District and transport the same in
order to sell at Madurai. In order to execute the same, they had planned
to transport the Ganja in the Maruti Alto Car registered in the name of the
first accused's wife. The informer informed the same to the respondent
police. P.W.7/the Sub Inspector of Police attached with the respondent
police received the secret information on 20.09.2020, at about 14:00 hrs.
Thereafter P.W.7 recorded the same, informed to his superior and
proceeded with his team to the occurrence place after complying the
procedure under Section 42 of the NDPS Act. When P.W.7 and his team
were waiting along with the informer at Madurai – Theni main road near
Mudakkusalai junction, the informer identified the Alto car in which the
appellants were travelling with 25 kgs of Ganja. Thereafter, when P.W.7
and his team intercepted the vehicle at 15:30 hrs, the driver and the five
other persons started to run in different directions. P.W.7 and his team
Page 6/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
could nab only four persons (A1, A2, A3 and A6) and the remaining 2
persons (A4 and A5) escaped from the scene of occurrence. P.W.7 after
complying the procedures under Section 50 of the NDPS Act, found 2
bags with the contraband weighing of 25 kgs (one bag contains 10kgs of
Ganja and another bag contains 15 kgs of Ganja), in the boot of the car.
From each bag, P.W.7 took sample and prepared the seizure mahazar with
photograph of the car. After that, he arrested the accused and brought the
accused to the station and he registered a case in Crime No.1403 of 2020
for the offences under Sections 8(c) r/w 20(b)(ii)(C), 25 and 29(1) of the
NDPS Act and submitted a detailed report to P.W.8-Inspector of Police
under Section 57 of the NDPS Act. During the course of the examination,
the arrested accused disclosed that the absconding accused are A4-
Karthik @ Akori Karthik and A5-Marimuthu @ Tori Mari. P.W.8 arrested
the said accused on 23.10.2020 on PT warrant. Thereafter, he completed
the investigation and filed the final report before the Special Court. A5
was shown as absconding accused in the final report.
3. The learned trial Judge had taken cognizance of the case in
C.C.No.267 of 2020. Thereafter, he split up the case against the
absconding accused(A5) and assigned a separate number ie., Spl.C.C.No.
114 of 2022. The learned trial Judge served the copies under Section 207
Page 7/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
Cr.P.C., to the accused Nos.1, 2, 3, 4 & 6 and framed the necessary
charges and commenced the trial in Spl.C.C.No.267 of 2020. The learned
trial Judge had examined P.W.1 to P.W.8 and the exhibited documents. At
that stage, A5 was arrested in another case and produced before the trial
Court under the PT Warrant. On 20.04.2022, the prosecution filed
Crl.M.P.No.373 of 2022, seeking to conduct joint trial. A1 and A5 had no
objection and hence, the learned trial Judge allowed the petition and
served the copies under Section 207 Cr.P.C., and framed the charges and
questioned A5. A5 pleaded not guilty and claimed to be tried.
4. The learned counsel appearing for A5 filed a memo stating that
he adopted the chief-examination of all the witnesses and lengthy cross
examination of all the accused. Therefore, the learned trial Judge
continued the trial, from the stage of questioning under Section 313
Cr.P.C., against A5. After the 313 Cr.P.C questioning, the accused neither
examined any witness nor any of the accused deposed before the Court.
But they marked the Ex.D1 to D5 through the investigating Officer/P.W.
8. The Special Court, after considering the evidence of PW1 to PW8,
Ex.P1 to Ex.P12, M.O1 to M.O.7 and Ex.D1 to Ex.D5, convicted the
accused and sentenced them to undergo 10 years Rigorous Imprisonment
and to pay a fine of Rs.1,00,000/- each, in default, to undergo 1 year
Page 8/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
Simple Imprisonment each, for the offence under Sections 8(c) r/w 20(b)
(ii)(C) of the NDPS Act and acquitted the appellants under Sections 25
and 29 of the NDPS Act. The same was challenged by the appellants by
filing the appeal before this Court.
5. The learned counsel appearing for the appellants made the
following submission:
5.1. The trial Court failed to consider the substantial non-
compliance Section 50 of the NDPS Act.
5.2. The trial Court failed to consider the factual contradictions
and the discrepancies regarding the compliance of Section 42 of the
NDPS Act, preparation of seizure mahazar, injury on the accused No.1
and the place of occurrence.
5.3. The trial Court failed to consider the explanation given by the
accused No.1 under Section 313 Cr.P.C in proper manner i.e, he was
arrested at Courtallam and a false case was registered which has been
amply proved.
5.4. The trial Court simply overlooked the fact that no explanation
was given for the 15 days delay in producing the contraband before the
concerned Court and failure of the prosecution to prove the safe custody
Page 9/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
of the contraband during the said period.
5.5. The trial Court failed to consider the fact that there is a delay
in marking of report under Section 57 of the NDPS Act, namely, after 2
years, and the same would vitiate the entire prosecution case.
5.6. The trial Court failed to consider the non-examination of the
independent witnesses which would vitiate the prosecution case of
recovery of contraband and arrest of the accused.
5.7. The jurisdiction exercised by the learned trial Judge in not
recording the evidence afresh after the arrest of A5 is in contravention of
the Section 273 Cr.P.C., and Rule 32 of Madras High Court Criminal
Rules of Practice.
5.8. The trial Court failed to consider that the investigating agency
prepared all the documents sitting at the Police Station and hence failed
to prove foundational facts of recovery, arrest and hence presumption
under Section 54 and 35 the NDPS Act never operates.
5.9. The trial Court failed to consider the fact that except the
confession of the accused No.1, there was no other material to convict
accused No.5 and hence the ratio laid down by the Hon'ble Apex Court in
Tofan Singh case is applicable and the same was not considered.
Page 10/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
5.10. The learned trial Judge failed to consider the discrepancies
relating to the documents furnished to the appellant under Section 207
Cr.P.C., and the documents furnished in the detention proceedings and
the documents marked in the Court.
5.11. The learned trial judge committed error in considering the
alleged bad antecedents of the appellants in deciding their culpability in
the present case and the same is against law.
5.12.The trial court failed to consider the non-compliance of
Section 52A of the NDPS Act.
5.13. To substantiate the above submissions, they relied on the
following precedents.
1.State of Rajasthan vs. Paramanand and another – 2014
(5) SCC 345.
2.K.Kumaresan vs. State Inspector of Police, SRMC Police
Station- 2023 (1) LW(Crl.) 904.
3.Danraj vs. State Inspector of Police, K6,T.P. Chatram
Police Station – 2019 (1) MWN(Cr.) 524.
4.Tamilvel and Others vs. State Inspector of Police, K6,T.P.
Chatram Police Station – 2018 (1) LW(Crl.) 353.
5.Babu and another vs. State Inspector of Police, Theni –
2022 (1) MLJ(Crl.) 467.
Page 11/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
6.State of Punjab vs. Baldev Singh – 1999 (6) SCC 172.
7.Ram Lakhan Singh and others vs. State of Uttar Pradesh –
1977 (3) SCC 268.
8.Narender Kumar vs. State (NCT of Delhi) 2012 (7)
SCC 171.
9.Vijaysinh Chandubha jadeja vs. State of Gujarat – 2011
(1) SCC 609.
6. The learned Additional Public Prosecutor made the
following submissions:-
6.1. Recovery was made in the car and hence Section 50 of the
NDPS Act is not applicable and he placed reliance on the various
judgments of the Hon’ble Supreme Court.
6.2. P.W.7 received secret information and he duly communicated
the same to PW8, obtained permission and conducted the raid, arrested
the accused and recovered the contraband and produced the same before
PW8 on the date of the occurrence itself along with report and the same
was proved through the Exs.P1, P2, P3, P4, P8, P10, P11. Therefore,
there is strict compliance of Sections 42, 52, 55 & 57 of the NDPS Act.
Hence, the submissions of the learned counsel for the appellants have to
be rejected.
Page 12/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
6.3. The discrepancies regarding the existence of two FIRs and
recovery mahazar cannot be accepted on the ground that no contra
documents were marked.
6.4. The contradictory statement between PW.7 and PW.8 relating
to the injury on the accused No.1 is misunderstood by the learned
counsel for the appellants and the same was properly explained by the
prosecution. i.e, PW.7 produced A1 before PW.8 along with contraband
in the police station and PW.8 sent the accused No.1 to obtain the
medical examination and found how the injury had been sustained. In the
said circumstances, the same is not fatal.
6.5. PW.8 produced the arrested accused along with contraband
and samples under Form 91 on date of occurrence itself before the
learned Judicial Magistrate and the learned Judicial Magistrate verified
the same and remanded the accused and directed to produce the
contraband before the Special Court. In said circumstance, delayed
production before the Special Court is no way affected the prosecution
case regarding the recovery of contraband on the basis of the cogent and
trustworthy evidence of PW.1, PW.2 & PW.7.
6.6. When the evidence of PW.1, PW.2 & PW.7 are cogent and
trustworthy, non examination of the independent witnesses do not affect
Page 13/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
the recovery and arrest of the accused and he relied on the various
judgments of the Hon'ble Supreme Court.
6.7. The appellants never took the plea under Section 52A of the
NDPS Act before the trial Court and the prosecution took the samples at
the occurrence place, packed and sealed them and the remaining
contraband was also packed and sealed and all were produced before the
trial Court and marked as material objects. Therefore, precedents relied
on by the learned counsel for the appellants are misconceived.
6.8. A5 was an absconding accused. He was produced under the
P.T.Warrant. Thereafter joint trial was ordered. The learned counsel for
A5 filed a memo stating that he adopted the chief examination and cross
examination of the remaining accused. Hence, there is no infraction of
Rule 32 of Madras High Court Criminal Rules of Practice and Section
273 Cr.P.C. The learned Judge acted as per Sections 299 & 317 Cr.P.C.
Therefore, no infirmities in the judgment.
6.9. Prosecution case is that all the accused travelled in the car
along with contraband and the same was recovered and hence they are in
conscious possession of the contraband and therefore, principles of
“Tofan Singh Case” cannot be applied. Further, through the evidence of
PW.1, PW.2 & PW.7 conscious possession of the contraband is proved
Page 14/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
beyond reasonable doubt and hence Sections 54 and 35 of the NDPS Act
comes into operation. There was no contra evidence produced on the side
of the appellants to dispel the presumption. Only explanation on behalf
of A1 and A5 under Section 313 Cr.P.C., is that A1 was arrested at
courtallam and a false case was foisted against him and A5 was brought
from some other place and a false case was foisted. The same was
contradicted by the statements made at the time of remand before the
learned remand Magistrate. Therefore, they gave false explanation and
the same may act as additional link to prove the charge against the
appellants.
6.10. The submission of the learned counsel for appellants that the
documents furnished under Section 207 Cr.P.C., detention proceedings
and documents marked are different, is not legally correct when the
alleged contra documents were not marked to contradict.
6.11. The learned Additional Public Prosecutor finally submitted
that A1 has 23 previous cases and other accused also have previous
antecedents before and after occurrence and he seeks for the confirmation
of sentence.
6.12. To substantiate the above submission, the learned Additional
Public Prosecutor relied the following precedents:-
Page 15/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
1. Madan Lal v. State of H.P. reported in (2003) 7 SCC 465.
2. Gurmail Chand v. State of Punjab reported in (2021) 14
SCC 334.
3. Khet Singh v. Union of India, reported in (2002) 4 SCC .
4.Latesh Vs. State of Maharashtra reported in 2018(3) SCC 66.
5.Kallu Khan v. State of Rajasthan, reported in 2021 SCC
OnLine SC 1223.
6.State of Punjab v. Makhan Chand, reported in (2004) 3
SCC 453.
7. Motiram Padel Joshi Vs. State of Maharashtra reported in
2018 (9) SCC 429.
8. Munna Pandey Vs. State of Bihar reported in 2023 SCC
Onlince Sc 1103.
9. State of Punjab Vs. Baljinder Singh reported in 2019 (10)
SCC 473.
10. Ragesh Dhiman Vs. State of Himachal Predesh reported in
2020 10 SCC 740.
Page 16/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
6.13. The questions to be decided in these appeal are whether the
prosecution proved the case against the appellants for the charge under
Sections 8(c) r/w 20(b)(ii)(C) of the NDPS Act beyond reasonable doubt?
and whether the judgment of the Court below is sustainable?
7. Proof of Recovery of Contraband:
7.1. P.W-7 received secret information on 20.09.2020 at 14.00 p.m
about the transporation of the Ganja by the appellants in the Alto Car
bearing Registration No.TN 81 V 7674 from Tenkasi to Madurai via
Theni-Madurai route and they were expected to reach the Madurai
Mudukkusalai Junction around 14.30 hrs. He recorded the same under
Ex.P8 and obtained the permission from PW.8 and proceeded towards the
occurrence place with a team and reached the spot at 14.45 p.m and was
waiting for the arival of the car.
7.2. The informer at 15.30 hrs., identified the car to P.W.7 and his
team. Then, while PW-7 was intercepting the said car, all the appellants
started to escape and run in different directions. The team could nab four
appellants only namely, A1, A2, A3, A6 and the remaining A4 & A5
escaped from the scene of occurrence. PW-7 informed to A1, A2, A3 and
A6 about the right of examination before the Gazatted Officer/Judicial
Page 17/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
Magistrate. They gave consent to be searched by P.W.7 himself. From the
boot of the car, two bags were recovered. In one bag, 10kgs contraband
Ganja was found and in the other bag 15 kgs contraband Ganja was
found. Totally 25 Kgs of Ganja was found in the car. Hence, PW-7
arrested the accused No.1, 2, 3 & 6 at 16.00 hrs. A1 gave a voluntary
confession around 16.00 to 17.30 hrs and disclosed about the illegal
transporation of Ganja from Tenkasi to Madurai and also the name of the
absconded accused A4 and A5. Thereafter, P.W.7, took the samples in
S1, S2, S3 & S4 and packed them with seal. He also packed the
remaining contraband and sealed in P1 & P2 and the car also was seized.
He brought the same along with A1, A2, A3 and A6 to the police station
and registered the case in Crime No.1403 of 2020 under FIR/Ex.P10. The
said version of the PW.7 was corroborated with PW.1 & PW.2 without
any material discrepencies and contraditions. Then he prepared the report
under Section 57 of the NDPS Act and sent it to P.W8. PW8 remanded
A6, A1, A2 and A3. The recovered contraband was produced before the
learned Judicial Magistrate at the time of remand on the date occurrence
itself. The learned Judicial Magistrate verified the same and directed to
produce the same before the Principal Special Court (for NDPS Cases),
Madurai. The expert opinion was obtained and the expert also affirmed
Page 18/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
the presence of “cannabis” in the sample. The prosecution marked the
samples as M.O.2, M.O.3, M.O.5 and M.O.6. The car was marked as
M.O.1 and the remaining contraband were marked as M.O.4 and M.O.7.
Hence, the physical evidence of the entire contraband and the samples
are duly produced before the trial Court and the same was marked
without any objections on the side of the appellants. The evidence of
P.W.1, P.W.2 & P.W.7 is cogent and there is no reason to
disbelieve their version regarding the search, recovery and arrest.
Further, this Court does not find any infirmities in their evidence.
Therefore, the prosecution proved the possession and recovery of
contraband from the appellants in the car, in which they were travelling,
beyond reasonable doubt. Hence, this Court concurs with the finding of
the learned Trial Judge who has given elobrate reasoning that the
appellants transported Ganja in the car (M.O-1).
8. Conscious possession:
8.1. The Appellants travelled in the private car, belonging to
the wife of the first accused, with the contraband. At the time of
interception, the appellants tried to flee away from the occurrence place
abandoning the car with the contraband. Four of them were nabbed and
Page 19/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
contraband was recovered and same was deposed by PW-1, PW-2 and
PW-7 cogently and convicingly. From the sequence of the events
narratted above, it is clear that the prosecution has proved conscious
posession. The conduct of all the accused attempting to flee away from
the occurrence place, abandoning the car with contraband is a relevant
fact to persume their active particiaption of transportation of the
contraband and possession of the contraband. A4 and A5 absconded from
the place. The abscondance normally is not a material circumstance to
prove the fact, but in this case it is relevant and their conduct is
admissable under Section 8 of the Indian Evidence Act, to prove their
conscious possession of the contraband. There was no explanation under
Section 313 Cr.P.C., regarding their abscondence and also the attempt to
escape from the scene of occurrence. In the overall circumstances, the
prosecution clearly proved the conscious possession of the contraband.
Hence, the culpable mental state has to be presumed. The
accused persons have not produced any documents to prove the contrary.
8.2. Under Section 35 of the NDPS Act, the burden is upon the
accused to rebut the presumption of existence of the culpable mental
state and under Section 35 of the NDPS Act, the culpable mental state
Page 20/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
includes intention, motive, knowledge of fact and belief, or reason to
believe a fact. The fact is said to be proved only when the Court believes
it to exist beyond reasonable doubt and not merely when its existence is
established by prepondance of prabability. Section 35 of the NDPS Act
reads as follows:
“Section 35 of the NDPS Act:
“(1) In any prosecution for an offence under this Act
which requires a culpable mental state of the accused,
the court shall presume the existence of such mental
state but it shall be a defence for the accused to prove
the fact that he had no such mental state with respect
to the act charged as an offence in that prosecution.
Explanation.-- In this section "culpable mental state"
includes intention motive, knowledge of a fact and
belief in, or reason to believe, a fact.
(2) For the purpose of this section , a fact is said
to be proved only when the court believes it to exist
beyond a reasonable doubt and not merely when its
existence is established by a preponderance of
probability.
8.3. In this case, the appellants travelled in the car along with the
contraband. A2, A3, A4 and A6 never furnished any explanation when
the incriminating circumstances were put to them and they were
questioned under Section 313 Cr.P.C. A1 and A5 took a false plea as if
Page 21/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
they were arrested in some other place. To prove the same, no evidence
was adduced. In such circumstances, there is no proof on the side of the
accused that A2 to A6 had no knowledge about the concealment of the
contraband in the boot of the car. They have sufficient knowledge about
the gunny bags with the contraband. Hence, the prosecution has proved
the conscious possession of the contraband by all the accused. Therefore,
submission on behalf of the accused on the basis of Tofan Singh’s case,
is misconceived and the same deserves to be rejected.
8.4. In this aspect, it is relevant to note the principle laid down by
the Hon'ble Supreme Court in 2013 (14) SCC 420 [Gian Chand Vs.
State of Haryana]:
“19. From the conjoint reading of the provisions of
Sections 35 and 54 of the Act, it becomes clear that if the
accused is found to be in possession of the contraband
article, he is presumed to have committed the offence
under the relevant provisions of the Act until the contrary
is proved. According to Section 35 of the Act, the court
shall presume the existence of mental state for the
commission of an offence and it is for the accused to prove
otherwise.
20. Thus, in view of the above, it is a settled legal
proposition that once possession of the contraband
articles is established, the burden shifts on the accused to
establish that he had no knowledge of the same.
21. Additionally, it can also be held that once the
Page 22/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
possession of the contraband material with the accused is
established, the accused has to establish how he came to
be in possession of the same as it is within his special
knowledge and therefore, the case falls within the ambit of
the provisions of Section 106 of the Evidence Act, 1872
(hereinafter referred to as “the 1872 Act”).”
8.5. The Hon'ble Supreme Court further held as under in Madan
Lal v. State of H.P., (2003) 7 SCC 465.
“26. Once possession is established, the person who
claims that it was not a conscious possession has to
establish it, because how he came to be in possession is
within his special knowledge. Section 35 of the Act gives a
statutory recognition of this position because of the
presumption available in law. Similar is the position in
terms of Section 54 where also presumption is available to
be drawn from possession of illicit articles.
27. … It has not been shown by the accused-appellants
that the possession was not conscious in the logical
background of Sections 35 and 54 of the Act.”
19. From the conjoint reading of the provisions of
Sections 35 and 54 of the Act, it becomes clear that if the
accused is found to be in possession of the contraband
article, he is presumed to have committed the offence
under the relevant provisions of the Act until the contrary
is proved. According to Section 35 of the Act, the court
shall presume the existence of mental state for the
commission of an offence and it is for the accused to prove
otherwise.”
9. Compliance of Section 57 of the NDPS Act:
Page 23/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
9.1. The learned counsel for the appellants submitted that PW7
was examined on 30.03.2022 and on the same day, A1 and A2 cross-
examined and due to the paucity of time, the same was adjourned for the
cross-examination of A3, A5 & A6. On 01.04.2022, A3, A4 & A6 were
cross-examined. On the same day, after completion of the cross-
examination, the prosecution re-examined PW7 and marked Ex.P11,
namely, the detailed report prepared under Section 57 of the NDPS Act,
dated 20.09.2020. After marking the same, he specifically deposed that
on the same day, he entrusted Ex.P11 to the Inspector of Police. All the
accused were cross-examined on the same day. Their specific case is
concerned, the said Ex.P11 is manipulated after the occurrence and
hence, the same was marked belatedly. Based on the same, the learned
Counsel for the appellant submitted that Section 57 report is doubtful and
the same was not prepared as projected by the prosecution. The said
submission is not accepted for the reason that in the document-Ex.P11, it
is clearly stated that the Inspector of Police received the same on
20.09.2020 at 20.00 hours. In the said circumstances, the delay in
marking the said document does not in anyway affect the prosecution
case of recovery of the contraband from the appellant on the basis of the
reliable evidence of PW.1, PW.2 and PW.7.
Page 24/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
9.2. Even otherwise as per the judgment of the Hon'ble Supreme
Court, non-compliance of the Section 57 of the NDPS Act does not
vitiate the prosecution case, and the same was fortified by the following
judgment reported in (2021) 14 SCC 334 in the case of Gurmail
Chand v. State of Punjab
10. Insofar as submissions on the basis of Section
57 of the NDPS Act are concerned, it has been held
that the said provision is not to be interpreted to
mean that in event the report is not sent within two
days, the entire proceeding shall be vitiated. “The
provision has been held to be directory and to be
complied with but merely not sending the report
within the said period cannot have such
consequence as to vitiate the entire proceeding.” A
three-Judge Bench of this Court in Sajan Abraham
v. State of Kerala [Sajan Abraham v. State of
Kerala, (2001) 6 SCC 692 : 2001 SCC (Cri) 1217]
has held that “non-compliance of Section 57 would
not vitiate the prosecution case.” In para 12 the
following was laid down : (SCC pp. 696-97)
12. The last submission for the appellant is,
there is non-compliance with Section 57 of the Act.
He submits under it, an obligation is cast on the
Page 25/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
prosecution while making an arrest or seizure, the
officer should make full report of all particulars of
such arrest or seizure and send it to his immediate
superior officer within 48 hours of such arrest or
seizure. The submission is, this has not been done.
Hence, the entire case is vitiates. It is true that the
communication to the immediate superior has not
been made in the form of a report, but we find,
which is also recorded by the High Court, that PW
5 has sent copies of FIR and other documents to
his superior officer, which is not in dispute. Ext.
P-9 shows that the copies of the FIR along with
other records regarding the arrest of the appellant
and seizure of the contraband articles were sent by
PW 5 to his superior officer immediately after
registering the said case. So, all the necessary
information to be submitted in a report was sent.
This constitutes substantial compliance and mere
absence of any such report cannot be said to have
prejudiced the accused. This section is not
mandatory in nature. When substantial compliance
has been made, as in the present case, it would not
vitiate the prosecution case. In the present case, we
find PW 5 has sent all the relevant material to his
superior officer immediately. Thus, we do not find
any violation of Section 57 of the Act.”
Page 26/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
9.3. Hence, any non-compliance of the Section 57, 52 & 55 of the
NDPS Act does not affect the prosecution case, when the entire
contraband and the samples are all produced before the Court along with
the accused on the date of the occurrence itself.
9.4. PW8 is the immediate Superior of PW7. PW8 received the
custody of the arrested accused and the sample along with the remaining
contraband on the date of occurrence itself. He only produced the
remaining contraband and the sample before the learned Judicial
Magistrate at the time of remand of the accused. The same was also
received by the learned Judicial Magistrate on the date of occurrence
itself. As per Section 57 of the NDPS Act, a report is to be submitted
within 48 hours to the immediate superior. It is not a requirement of the
Act that the said report should reach the Court immediately. The delay in
reaching of the document to the Court is not fatal to the prosecution
when the contraband and the sample were produced on the same day.
Further, the information was furnished to PW8 within 48 hours. In
Ex.P11, there was an endorsement that he received the same on the same
day. In this regard, there was a rambling cross-examination, but no
Page 27/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
favourable answer doubting the prosecution case was elicited. In the said
circumstances, the said contention of the non-compliance of Section 57
of the NDPS Act is not accepted.
10. Plea of non-compliance of Section 52A of the NDPS Act:
10.1. It is not unusual on the part of the learned counsel for
appellants to rely the recent decisions of the Hon'ble Supreme Court to
suit their convenience without pointing any decision on law and also
without pointing any factual foundation of the grounds of acquittal
rendered by the following judgments of the Hon'ble Supreme Court. (i)
2023 Live Law (SC) 570 in the case of Simarnjit Singh Vs. State of
Punjab, (ii) 2023 Live Law (SC) 549 in the case of Mangilal Vs. The
state of Madhya Pradesh,
10.2. In the relied judgments of Hon'ble Supreme Court, it is
found that the recovered contraband was not produced. Therefore, the
Hon'ble Supreme Court acquitted the appellant considering other
remaining circumstances also. In this case, the recovery was properly
proved. In this case, contraband was produced before the remanding
Page 28/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
Magistrate during the remand initially, thereafter, it was produced before
the Special Court for forwarding the sample to the scientific officer for
chemical examination. The scientific officer confirms the receipt of the
samples from the Court with seals intact. The report also confirmed the
presence of the “cannabis” in the samples and the remaining contraband
was produced during the trial and marked as physical evidence. The same
was identified and confirmed by P.W.1, P.W.2 and P.W.7. Thus, taking of
sample in the occurrence place, production of the remaining contraband
along with samples before the Court at the time of the remand and
producing the same before the trial Court, during the trial and marking as
material objects leaves no room for suspicion. Thus, guidelines of
Standing Order 1/89 has been followed in this case. When there is no
plea of destruction or disposal, the question of compliance Section 52A
of the NDPS Act does not arise.
10.3. Further, the Hon'ble Supreme Court in the case of Khet
Singh v. Union of India, reported in (2002) 4 SCC has held as
follows:
“10. The instructions issued by the Narcotics Control
Bureau, New Delhi are to be followed by the officer-in-
Page 29/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
charge of the investigation of the crimes coming within
the purview of the NDPS Act, even though these
instructions do not have the force of law. They are
intended to guide the officers and to see that a fair
procedure is adopted by the officer-in-charge of the
investigation. It is true that when a contraband article is
seized during investigation or search, a seizure mahazar
should be prepared at the spot in accordance with law.
There may, however, be circumstances in which it would
not have been possible for the officer to prepare the
mahazar at the spot, as it may be a chance recovery and
the officer may not have the facility to prepare a seizure
mahazar at the spot itself. If the seizure is effected at the
place where there are no witnesses and there is no
facility for weighing the contraband article or other
requisite facilities are lacking, the officer can prepare
the seizure mahazar at a later stage as and when the
facilities are available, provided there are justifiable
and reasonable grounds to do so. In that event, where
the seizure mahazar is prepared at a later stage, the
officer should indicate his reasons as to why he had not
prepared the mahazar at the spot of recovery. If there is
any inordinate delay in preparing the seizure mahazar,
that may give an opportunity to tamper with the
contraband article allegedly seized from the accused.
There may also be allegations that the article seized was
by itself substituted and some other items were planted
Page 30/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
to falsely implicate the accused. To avoid these
suspicious circumstances and to have a fair procedure
in respect of search and seizure, it is always desirable to
prepare the seizure mahazar at the spot itself from
where the contraband articles were taken into custody.
16. Law on the point is very clear that even if there is
any sort of procedural illegality in conducting the
search and seizure, the evidence collected thereby will
not become inadmissible and the court would consider
all the circumstances and find out whether any serious
prejudice had been caused to the accused. If the search
and seizure was in complete defiance of the law and
procedure and there was any possibility of the evidence
collected likely to have been tampered with or
interpolated during the course of such search or seizure,
then, it could be said that the evidence is not liable to be
admissible in evidence.”
10.4. In the case of State of Punjab v. Makhan Chand,
reported in (2004) 3 SCC 453 it has been held as follows:
“9. Learned counsel for the respondent-accused relied
on certain standing orders and standing instructions
issued by the Central Government under Section 52-A(1)
which require a particular procedure to be followed for
drawing of samples and contended that since this
procedure had not been followed, the entire trial was
vitiated.
Page 31/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
10. This contention too has no substance for two
reasons. Firstly, Section 52-A, as the marginal note
indicates, deals with “disposal of seized narcotic drugs
and psychotropic substances”. Under sub-section (1),
the Central Government, by a notification in the Official
Gazette, is empowered to specify certain narcotic drugs
or psychotropic substances, having regard to the
hazardous nature, vulnerability to theft, substitution,
constraints of proper storage space and such other
relevant considerations, so that even if they are material
objects seized in a criminal case, they could be disposed
of after following the procedure prescribed in sub-
sections (2) and (3). If the procedure prescribed in sub-
sections (2) and (3) of Section 52-A is complied with and
upon an application, the Magistrate issues the
certificate contemplated by sub-section (2), then sub-
section (4) provides that, notwithstanding anything to
the contrary contained in the Indian Evidence Act, 1872
or the Code of Criminal Procedure, 1973, such
inventory, photographs of narcotic drugs or substances
and any list of samples drawn under sub-section (2) of
Section 52-A as certified by the Magistrate, would be
treated as primary evidence in respect of the offence.
Therefore, Section 52-A(1) does not empower the
Central Government to lay down the procedure for
search of an accused, but only deals with the disposal of
seized narcotic drugs and psychotropic substances.”
10.5. In the case of Kallu Khan v. State of Rajasthan, reported in
2021 SCC OnLine SC 1223 it has been held as follows:
“13. At this state, the argument advanced by the appellant
regarding non-production of contraband in the court due to
which benefit of doubt ought to be given to accused, is
required to be adverted to. In the case of State of
Rajasthan v. Sahi Ram, (2019) 10 SCC 649, this Court held
that when the seizure of material is proved on record and is
Page 32/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
not even disputed, the entire contraband material need not be
placed on record. It is not a case in which the appellant has
proved beyond reasonable doubt that while sending the
samples for forensic tests, seals were not intact or the
procedure has been materially not followed by protecting the
seized substance or was not stored properly, as specified in
the case of Mohan Lal (supra) in which case the directions
were given to be followed on administrative side. However,
in the facts of the case, the said judgment is not of any help
to appellant.
9.10. The Hon'ble Supreme Court held that even non-
production of the entire contraband before the Court is not
fatal when the seizure was proved and the sample taken
from the said seized contraband is proved. In this aspect, it
is relevant to the judgment of the Hon'ble Supreme
Court in Than Kunwar v. State of Haryana, (2020) 5 SCC
260: (30. The Court also went to hold in Sahi Ram [State of
Rajasthan v. Sahi Ram, (2019) 10 SCC 649 : (2020) 1 SCC
(Cri) 85] that if seizure is otherwise proved on record and it
is not even doubted or disputed, it need not be placed before
the Court. The Court further held that if the seizure is
otherwise proved what is required to be proved is the fact that
samples taken out of a contraband are kept intact. This Court
held as follows : (SCC pp. 657-58, paras 15-16 & 18)
“15. It is true that in all the aforesaid cases submission was
advanced on behalf of the accused that failure to produce
contraband material before the court ought to result in
acquittal of the accused. However, in none of the aforesaid
cases the said submission singularly weighed with this Court
to extend benefit of acquittal only on that ground. As is clear
from the decision of this Court in Jitendra [Jitendra v. State
of M.P., (2004) 10 SCC 562 : 2004 SCC (Cri) 2028] , apart
from the aforesaid submission other facets of the matter also
weighed with the court which is evident from paras 7 to 9 of
the decision. Similarly in Ashok [Ashok v. State of M.P.,
(2011) 5 SCC 123 : (2011) 2 SCC (Cri) 547] , the fact that
there was no explanation where the seized substance was kept
(para 11) and the further fact that there was no evidence to
Page 33/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
connect the forensic report with the substance that was seized
(para 12) were also relied upon while extending benefit of
doubt in favour of the accused. Similarly, in Vijay Jain [Vijay
Jain v. State of M.P., (2013) 14 SCC 527 : (2014) 4 SCC (Cri)
276] , the fact that the evidence on record did not establish
that the material was seized from the appellants, was one of
the relevant circumstances. In the latest decision of this Court
in Vijay Pandey [Vijay Pandey v. State of U.P., (2019) 18 SCC
215] , again the fact that there was no evidence to connect the
forensic report with the substance that was seized was also
relied upon to extend the benefit of acquittal.
16. It is thus clear that in none of the decisions of this Court,
non-production of the contraband material before the court
has singularly been found to be sufficient to grant the benefit
of acquittal.
***
18. If the seizure of the material is otherwise proved on record
and is not even doubted or disputed, the entire contraband
material need not be placed before the court. If the seizure is
otherwise not in doubt, there is no requirement that the entire
material ought to be produced before the court. At times the
material could be so bulky, for instance as in the present
material when those 7 bags weighed 223 kg that it may not be
possible and feasible to produce the entire bulk before the
court. If the seizure is otherwise proved, what is required to
be proved is the fact that the samples taken from and out of
the contraband material were kept intact, that when the
samples were submitted for forensic examination the seals
were intact, that the report of the forensic experts shows the
potency, nature and quality of the contraband material and
that based on such material, the essential ingredients
constituting an offence are made out.”
31. In the facts of this case, no doubt the contraband
article weighed 6 kg 300 gm. A perusal of the judgment of the
trial court does not appear to suggest that the appellant had
taken the contention regarding non-production of the
contraband before the trial court.
Page 34/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
10.6. In this case, prosecution never took plea that the recovered
contraband are to be disposed without following the procedure as stated
in the Mohanlal case and claimed any lame excuse for non-production of
the contraband. Section 52A of the NDPS Act deals only with the
disposal of the seized contraband and not related to the seizure from the
scene of occurrence. The Hon’ble Supreme Court in Mohanlal’s case
issued directions to follow the procedure of disposal of the sized
contraband by taking the inventory before destruction. The said
directions were issued only on considering the submissions of the
prosecution that the seized contraband were disposed off without taking
the samples and preserving the remaining contraband as per the Central
Government notification 1/89 on the basis of the specific observation in
Paragraph 13 that “except Directorate of Revenue Intelligence, most the
States, however claim that no samples are drawn at the time of the
seizure. The DRI alone claims that samples are drawn at the time of
seizure.” But in the State of Tamilnadu, the officers follow the Standing
Order 1/89 of the Central Government taking samples with the proper
packing and sealing and packing the remaining contraband also with
seal. Thereafter they prepare the inventory under Form 91 and produce
Page 35/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
the samples as well as the remaining contraband at the time of initial
remand before the learned Judicial Magistrate without any delay and the
learned Judicial Magistrate also verify the same and direct the
prosecution to produce the same before the Special Court. After that, the
sample is sent through the Special Court for chemical analysis and the
remaining contraband is under the periodical supervision of the Special
Court and the same is produced as physical evidence during trial and
marked as Material Objects. The said Form 91 is also marked as
inventory as contemplated under Section 52A of the NDPS Act. Further
the material objects are also identified by the witnesses. Therefore, the
Form 91 satisfied the “identity” of the contraband as per the Act. Section
52A of the NDPS Act deals only with the disposal of the seized
contraband and it is not related to seizure from the scene of occurrence.
When the prosecution has taken a stand that the samples were taken at
the spot and the samples along with the remaining contraband were
produced before the Court as physical evidence, Section 52A of the
NDPS Act is not applicable. In this case as stated above, sample was
taken at the spot and both samples and remaining contraband were
produced before the learned Judicial Magistrate at the time of initial
remand and the same was produced before the trail Court at the time of
Page 36/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
trial and same was identified by the witnesses. Therefore, Section 52A of
the NDPS Act is not applicable to the facts of the case. Hence, this Court
is not inclined to accept the plea of the violation of Section 52A of the
NDPS Act.
11. Contradiction and Discrepancies:
11.1.(i). The learned Counsel for accused No.1 submitted that PW.
7 deposed that he did not know about the injury sustained by the accused
No.1. Contrary to this PW.8-Inspector of Police deposed that when he
sent A1 to judicial remand, there was injury on A1. According to the
appellant, the said contradiction is material one. Therefore, the search,
arrest and recovery allegedly made by PW7 is not believable one.
Therefore, he seeks for acquittal.
11.1(ii). Per contra, the learned Additional Public Prosecutor
submitted that after arrest through the arrest memo, P.W7 produced the
accused No.1,2,3 & 6 before the P.W8-Inspector of Police along with
FIR and other incriminating materials. P.W8 as per the D.K.Basu
guidelines, directed his subordinate to get the medical memo from the
Page 37/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
Government Hospital. Hence, A1 was produced along with other accused
before the Government Hospital. The Doctors noted the injury on A1.
Therefore, he had knowledge about the injury and hence, he affirmatively
stated during the cross-examination that there was injury at the time of
the remand. Hence, according to the learned Additional Public
Prosecutor, the said contradiction does not affect the seizure of
contraband made by P.W7.
11.1(iii). P.W7 arrested A1, A2, A3 & A6 in the occurrence place.
The seized contraband and the samples taken from the said seized
contraband were packed and properly sealed and the same was produced
along with the accused including A1, before P.W8, by P.W7. It is not the
case of A1 that he sustained injuries and was unable to move from the
place of occurrence. According to the evidence of P.W7 and Ex.P10, he
produced A1 along with other accused before P.W8. Thereafter P.W8
directed his subordinates to get the medical memo as per the direction of
the D.K.Basu guidelines. The subordinates produced A1 before the
Government Hospital. In the Government Hospital, the doctors found
that A1 sustained injury on his leg. Therefore, he requested the learned
Judicial Magistrate to remand A1. The learned Judicial Magistrate visited
Page 38/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
the Hospital and recorded the following statement.
“A1 Kalimuthu right ankle, there was bandage when
examined, stated he has fall down in Courtallam, and got
injured no complainant against police.
11.1(iv). After noting the above statement, the learned Judicial
Magistrate remanded the accused. Therefore, P.W8 noted the injury on
A1. But it is not the case of A1 that he was not taken to the police station
by P.W7 and he was directly admitted in the hospital. In the said
circumstances, the deposition of P.W7 that he did not know about the
injury sustained by A1 cannot be a ground to disbelieve his version of
search, recovery and arrest for the reason that his evidence is
unimpeachable and the same was also corroborated by P.W1 and P.W2.
11.1(v). Therefore, the said contradiction does not affect the
seizure made by P.W7. The said submission of the learned Additional
Public Prosecutor on facts deserves to be accepted.
11.2. Further, the argument of the learned Counsel for A1 that the
contradiction between the evidence of P.W2 and P.W7 regarding the
preparation of the rough sketch is not a material one on proper
Page 39/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
appreciation of the deposition of both the witnesses.
“
11.2.1. In view of the above, the said contradiction is not material.
Considering the circumstances of the case that when P.W1, P.W2 & P.W7
and his team intercepted the car driven by A6 along with the remaining
accused with contraband of 25 Kgs of Ganja and they fled away from the
scene of occurrence and the team secured only four persons and in the
said tensed situation, the said minor contradiction does not affect the case
of the prosecution of recovery of contraband from the accused.
11.3. In this case, the learned trial Judge had held that the
Inspector of Police-P.W8 had inadvertently signed in the arrest intimation
which have been marked as Ex.D1 to D4. The learned counsel for the
appellant/A1 submitted that the fact regarding the Inspector of Police-
P.W8 had signed the arrest intimation, falsifies the entire case of the
prosecution. The said submission of the learned counsel for A1 has no
substance. The arrest memo is different from the arrest intimation. As per
the NDPS Act, it is the duty of the recovery officer to produce the
arrested accused and recovered contraband before the immediate
Superior. The immediate Superior is the officer who remand the accused.
The Form prescribed as per the guidelines of D.K.Basu mentions
Page 40/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
“arresting officer”. At the time of preparation of the arrest intimation,
accused were under his custody and he alone has to submit the remand
requisition. The arrest intimation is aimed to inform the relative of the
accused about the arrest. Therefore, the Inspector of Police signed in the
said column of arrest intimation. He did not affix his signature in the
arrest memo which has been prepared at the scene of occurrence. If the
signature of the P.W8- Inspector of Police, is found in arrest memo, then
there is some substance in the submission of the learned counsel for the
appellant in raising doubts as regards the arrest made by the P.W7. But in
this case, arrest memo was marked as Ex.P2 and it contains the signature
of P.W7 alone, it does not contain the signature of P.W8. In the said
arrest memo, all the accused have subscribed their signature and the same
was witnessed by P.W1 and P.W2.
11.3.1. In the said circumstances, subscribing the signature of the
Inspector of Police in the arrest intimation, viz., Ex.D1 to Ex.D4, cannot
be a ground to hold that the arrest was made by the P.W8. In this regard,
the learned trial Judge has given a different finding without realizing that
it is only an arrest intimation and not the arrest memo. Hence, the
findings of the trial Court cannot be termed as perverse. The learned trial
Page 41/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
Judge has answered each point raised by the learned counsel in an
elaborate manner and addressed the issues with factual discussions on the
basis of the precedents of the Hon'ble Supreme Court. Therefore, this
Court does not find any reason to interfere with the same.
11.4. The learned counsel for the appellants submitted that there is
a discrepancy between the evidence of P.W1 and P.W7. According to
P.W1, he never spoke about the independent witnesses, but P.W7
specifically stated that when he called the independent witnesses, they
refused to join. The said contradiction is not material when P.W7 has
clearly deposed about the fact. When P.W1 is corroborated with the
material particulars of the search, recovery of the contraband and the
arrest of the accused, the minor contradiction regarding the above aspect
does not render his evidence as false.
11.5. The above contradiction are not material contradiction and
hence, as held by the Hon'ble Supreme Court in the following judgments,
the same cannot be taken into consideration to disbelieve the evidence of
PW.1, PW.2 and PW.7.
11.5.(i) Mritunjoy Biswas v. Pranab, (2013) 12 SCC 796:
Page 42/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
28. As is evincible, the High Court has also taken note
of certain omissions and discrepancies treating them to be
material omissions and irreconcilable discrepancies. It is
worthy to note that the High Court has referred to the
some discrepancies which we find are absolutely in the
realm of minor discrepancies. It is well settled in law that
the minor discrepancies are not to be given undue
emphasis and the evidence is to be considered from the
point of view of trustworthiness. The test is whether the
same inspires confidence in the mind of the court. If the
evidence is incredible and cannot be accepted by the test
of prudence, then it may create a dent in the prosecution
version. If an omission or discrepancy goes to the root of
the matter and ushers in incongruities, the defence can
take advantage of such inconsistencies. It needs no special
emphasis to state that every omission cannot take place of
a material omission and, therefore, minor contradictions,
inconsistencies ……… The omission should create a
serious doubt about the truthfulness or creditworthiness of
a witness. It is only the serious contradictions and
omissions which materially affect the case of the
prosecution but not every contradiction or omission.”
11.5(ii) Shyamal Ghosh v. State of W.B., (2012) 7 SCC 646:
68. From the above discussion, it precipitates that the
discrepancies or the omissions have to be material ones
and then alone, they may amount to contradiction of some
serious consequence. Every omission cannot take the
place of a contradiction in law and therefore, be the
foundation for doubting the case of the prosecution.
Minor contradictions, inconsistencies or embellishments
of trivial nature which do not affect the core of the
prosecution case should not be taken to be a ground to
reject the prosecution evidence in its entirety. It is only
when such omissions amount to a contradiction creating a
serious doubt about the truthfulness or creditworthiness of
the witness and other witnesses also make material
improvements or contradictions before the court in order
Page 43/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
to render the evidence unacceptable, that the courts may
not be in a position to safely rely upon such evidence.
Serious contradictions and omissions which materially
affect the case of the prosecution have to be understood in
clear contradistinction to mere marginal variations in the
statement of the witnesses.
69. Another settled rule of appreciation of evidence as
already indicated is that the court should not draw any
conclusion by picking up an isolated portion from the
testimony of a witness without adverting to the statement
as a whole.
11.5(iii) S. Govindaraju v. State of Karnataka, (2013) 15 SCC
315:
23. It is well settled legal proposition that while
appreciating the evidence, the court has to take into
consideration whether the contradictions/omissions were of
such magnitude so as to materially affect the trial. Minor
contradictions, inconsistencies, embellishments or
improvements in relation to trivial matters, which do not
affect the core of the case of the prosecution, must not be
made a ground for rejection of evidence in its entirety. The
trial court, after going through the entire evidence available,
must form an opinion about the credibility of the witnesses,
and the appellate court in the normal course of action, would
not be justified in reviewing the same, without providing
justifiable reasons for doing so.”
12. Compliance of Rule 32 of Madras High Court Criminal
Rules of Practice: The learned counsel for A5 submitted that A5
absconded during the trial. Hence, non-bailable warrant was issued
against A5. Therefore, the learned trial Judge split the case against him
and assigned C.C.No.114 of 2022. He proceeded the trial in parent case
Page 44/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
in C.C.No.267 of 2020. After the completion of the examination of the
witnesses, A5 was arrested and produced before the Court under the
Prisoners Transit warrant. Thereafter, the prosecution filed Cr.M.P.No.
373 of 2022 seeking joint trial. The same was not objected by A5 and A1.
Hence, the learned trial Judge considered the plea of joint trial and
ordered accordingly. Consequently, the learned trial Judge framed the
charges against A5 and questioned him and he pleaded not guilty and
hence, the trial was commenced against him. At that time, the learnd
counsel for A5 filed a memo to adopt the chief examination and cross-
examination of all the accused. The contents of the memo is as follows:
“The Parent case in C.C.No.267/2020 totally 8
witnesses were examined in chief and cross examination.
The same evidence which includes the cross examination
of all accused adopted in this case. The cross
examination of all accused are adopted in this case.”
12.1. Thereafter, the learned trial Judge proceeded the trial further
and questioned the accused under Section 313 Cr.P.C, by putting the
incriminating materials available against them and they denied the same
as false. A5 and his counsel never raised any plea of the non-recording of
evidence as per Section 273 Cr.P.C and prejudice caused to him.
Page 45/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
12.2. From the above events, this Court finds no merit in the
contention of the recording of evidence in the absence of the accused is
not in conformity with the Rules of Practice framed by the Madras High
Court which reads as follows:
“Rule 32. Cases of Absconding accused.— (1) Where
the Court has issued process for the appearance of an
accused and the same could not be served and if the
Court is satisfied from the affidavit referred to in sub-
rule (11) of rule 29 and/or report under sub-rule (7) of
rule 31 that the accused is in abscondence, the Court
may, after having waited for a reasonable time, proceed
under section 82 of the Code, notwithstanding the
power of the Court to record evidence under section
299 of the Code. Before recording evidence under
section 299 of the Code, the Court shall record a
finding that it has been proved that the accused person
has absconded and there is no immediate prospect of
arresting him. (2) If a case referred to under sub-rule
(1) involves a single accused against whom proceedings
have been initiated under section 82 of the Code, the
Court shall shift the case from the relevant Register to
the Register of Long Pending Cases in Administrative
Form No.30 (Criminal Register No.30). (3) When there
are two or more accused in a case and only some of
Page 46/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
them have appeared or have been produced before the
Court and if the Court is satisfied that the presence of
other accused cannot be secured within a reasonable
time, having due regard to the right of such of the
accused in attendance to have the case against them
enquired into or tried without delay, the Court may split
up the case if it is satisfied that such splitting up will
cause no prejudice either to the prosecution or to the
accused in attendance and proceed with the enquiry or
trial as regards the accused who are in attendance. (4)
While splitting up the case as referred to in sub-rule (3),
the Court shall assign a fresh number to the split up
case relating to the absconding accused and enter the
same in the relevant register of the current year. The
Court shall also indicate the number of the parent case
in brackets wherever the fresh case number is
mentioned. (5) The Court shall record the evidence of
the witnesses in the split up case under section 299 of
the Code simultaneously while The Criminal Rules of
Practice, 2019 29 29 recording the evidence in the
parent case. It is not necessary for the Court to
complete the proclamation proceedings under section
82 of the Code for recording evidence under section
299 of the Code against the absconding accused. (6)
While recording the evidence of witnesses under section
299 of the Code, the Court may take as many copies as
it deems necessary for the purpose of furnishing to the
Page 47/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
absconding accused as and when they appear or are
produced before the Court. (7) The copies of the records
of the original case including depositions of the
witnesses and exhibits duly attested by the presiding
officer of the Court shall be filed in the split up case. (8)
When a Sessions Case is split up by the trial Court, the
same shall be immediately reported to the Court of
Session and the Court of Session shall assign a number
to the split up case, enter the same in the Sessions
Register and communicate the number to the trial Court
forthwith. (9) Sub-rules (1) to (8) shall apply, as far as
may be, to cases where an accused person has
appeared, but, has subsequently absconded.”
12.3. Section 273 Cr.P.C is subject to Section 299 Cr.P.C. As per
Section 299 Cr.P.C, in the case of an accused person who has absconded
and his immediate prospect of arresting him is not viable, the trial Court
may record the evidence in his absence. It is also provided that in the
case of split up case, evidence may be recorded in the absence of the
absconding accused. In this case, a non-bailable warrant was pending
against A5 for more than a year. He was arrested in some other case and
produced in this case under the Prisoners Transit Warrant. The learned
counsel for A5 also filed memo adopting the chief examination and
Page 48/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
cross-examination. In the memo, it is also clear that all the questions
relating to the incident was already cross-examined. Therefore, the
learned trial Judge proceeded with the trial and concluded the trial and
neither the plea of prejudice was raised nor any prejudice is seen by this
Court. Even during the 313 Cr.P.C questioning, no plea was raised about
the non-recording of the evidence as per Section 273 Cr.P.C. Hence, this
Court does not find any infirmity in the judgment of the learned trial
Judge in proceeding with the trial and concluding the trial.
12.4. Looking from other angle, in this case, the split up petition
was ordered recording the reason that A5 had absconded and the
investigating agency was unable to secure the accused. In the said
circumstances, the provisions under Section 299 (1) Cr.P.C is applicable.
Since A5 fled away from the place of occurrence and final report was
filed against him. The learned trial Judge, after the production of A5
under the Prisoners Transit Warrant and his appearance through advocate,
furnished copies under Section 207 Cr.P.C and charges were framed and
questioned him under Section 313 Cr.P.C, and he pleaded not guilty and
he filed the memo to adopt the chief and cross-examination of the
remaining appellants. The Criminal Rules of Practice, 2019 and Sections
317 and 299 Cr.P.C also provided to record evidence and proceed the
Page 49/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
trial in the case of absconding accused. Hence, there is no infraction of
Section 273 Cr.P.C and Rule 32 of the Criminal Rules of Practice, 2019.
12.5. In the case of the absconding accused, the said procedure is
followed all over the world. The Hon'ble House of Lords in 2002 (2)
ALL ER 113 R v. Jones, held as follows:
“Where a criminal defendant of full age and sound
mind, with full knowledge of a forthcoming trial,
voluntarily absented himself, there was no reason in
principle why his decision to violate his obligation to
appear and not to exercise his right to appear should have
the automatic effect of suspending the criminal
proceedings against him until such time. If ever, as he
chose to surrender himself or was apprehended. If he
voluntarily chose not to exercise his right to appear, he
could not impugn the fairness of the trial on the ground
that it had followed a course different from that which it
would have followed had he been present and represented.
Moreover, there was nothing in the jurisprudence of the
European Court of Human Rights to suggest that a trial of
a criminal defendant held in his absence was inconsistent
with the Euroean Convention for the Protection of Human
Rights and Fundamental Freedoms 1950 (as set out in Sch
1 to the Human Rights Act 1998). Accordingly, the Crown
Court did have a discretion to conduct a trial in the
Page 50/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
absence, from its commencement, of the defendant. That
discretion should, however be exercised with the utmost
care and caution. If the absence of a defendant were
attributable to involuntary illness or incapacity, it would
very rarely, if ever, be right to exercise the discretion in
favour of commencing the trial, at any rate unless the
defendant was represented and had asked that the trial
should begin. The seriousness of the offence was not a
matter which was relevant to the exercise of the discretion.
The judge's overriding concern was to ensure that the
trial, if conducted in the absence of the defendant, would
be as fair as circumstances permitted, and lead to a just
outcome.” uld be represented
Further, it is the duty of the accused to be present during the trial. Inspite
of his knowledge about the trial, he did not appear and waived his right
of presence during the trial, hence he cannot be allowed to turn around
and say that the different procedure followed by the Court has affected
his fair trial. The learned counsel stated that there was no incriminating
materials available against the appellant/A5 to show his involvement and
hence, he seeks for acquittal. The said submission was made
supplementary to the plea of non-compliance of the Section 273 Cr.P.C.
The said submission deserves to be rejected on the ground that PWs.1,2
& 7 clearly deposed that A4 and A5 absconded from the scene of
Page 51/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
occurrence and there was no cross-examination disputing the identity.
13. A1 stated in 313 Cr.P.C proceedings that he was arrested by
the respondent police in Courtrallam and a false case was framed. The
said answer is as follows:
“vdf;F rl;lk; xG';F tHf;F cs;sJ/
vd;id Fw;whyk; gpoj;J te;J. vd;
kidtpaplk; fhiu th';fp te;J bgha;
tHf;F nghl;L cs;shh;fs;/ mjw;F Kd; ehd;
f";rhit ghh;j;jJ ,y;iy/ ,e;j tpguj;ij
hpkhz;l; bra;a[k; nghJ eLthplk;
Twpa[s;nsd;/”
13.1. The learned Judicial Magistrate visited the Hospital and
recorded the following statement.
“A1 Kalimuthu right ankle, there was bandage when
examined, stated he has fall down in Courtallam, and got
injured no complainant against police.”
13.2. A5 stated that at the time of occurrence, he was residing in
another village and he was illegally detained and his leg was broken
thereafter, a false case was foisted against him. A5 stated as follows:
Page 52/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
ehd; ntspa+upy; ,Ue;Njd;. vd;id gpbj;J
mbj;J fhiy cilj;J ,e;j tof;fpy;
ngha;ahf Nrh;j;J tpl;lhh;fs;. vd;id NtW
tof;fpy; cs;Ns mDg;gptpl;L gpwF formal
arrest nra;Js;shh;fs;.
A5 did not produce any evidence to prove the above stand. The
remaining accused did not speak anything about it. The explanation
given by A5 without any supporting evidence or corroborating evidence,
cannot be accepted.
13.3. Insofar as the evidence of A1 is concerned, he has stated that
he was taken into custody at Courtallam and a false case was registered,
but he has not proved the same by tendering legal evidence. It is a built
up story by the learned counsel appeared on his behalf. Hence, the said
explanation cannot be accepted and there was no material to consider the
said explanation also. Mere explanation is not sufficient to disprove the
presumption under Section 35 of the NDPS Act when the prosecution
established the case of recovery of contraband cogently through the
trustworthy evidence of the witnesses and producing the samples and the
remaining contraband also before the Court. The remaining accused did
Page 53/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
not take any stand which is taken by A1 and A5, and in these
circumstances this Court has no hesitation in disbelieving the version put
forth by A1 and A5.
14. Non- mentioning of the absconding accused in column No.7
of FIR (Ex.P10).
14.1. The learned counsel for the appellants submitted that
according to the prosecution, totally six persons were surrounded by the
investigating agency and two persons were escaped from the custody of
the investigating agency. Neither their names were mentioned in column
No.7 nor any reference was made about the absconding two persons.
14.2. On reading the entire contents of the FIR, it is clear that the
names of the absconding accused are clearly disclosed in the body
portion of the FIR and it was omitted only in the front portion of the FIR
i.e column No.7. P.W7 received information at 14.00 hours of
20.09.2020. He completed the search and seizure and arrest at 18.30
hours as per the procedure and thereafter, he produced the accused before
the Police Station and registered the case at 19.00 p.m. The FIR reached
the Court at 11.50 p.m on the same day. In the FIR, there is a clear
description of all the accused, which reads as follows:
Page 54/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
mg;NghJ mth;fs; mditUk; fhhpd; fjtpid
jpwe;J jg;gp nry;y Kaw;rpj;jjhfTk;> jhq;fs;
jd;id cl;gl KdP];tud>; khhP];tud; biuth;
ghyh[p MfpNahh;fis klf;fp gpbj;J ifJ
nra;jjhfTk;> jq;fSld; fhhpy; te;j mNfhhp
fhh;j;jpf; kw;Wk; Nlhhp khhp MfpNahh;fs;
fhhpy; ,Ue;J ,wq;fp NghyPrhh;fshfpa
jq;fsplk; gpbglhky; jg;gp nrd;Wtpl;lhh;fs; vd
nrhd;dhh;.
ifJ nra;j vjphpfs; kw;Wk; ifg;gw;wpa
tof;fpd; nrhj;JfSld; fhpNkL fhty; epiyak;
19.00-kzpf;F te;J> 1-tJ vjphp fhspKj;J (v)
nts;isfhsp> 2-tJ KdP];tud;> 3-tJ
khhP];tud;> 4-tJ ghyh[p kw;Wk; jiykiwthf
cs;s 5-tJ vjphp mNfhhp fhh;j;jpf;> 6-tJ vjphp
Nlhhp khhp MfpNahh;fs; kPJ C.5 fhpNkL (r&x)
fhty; epiya Fw;w vz;-1403/2020 U/s. 8(c) r/w
20 (b) (ii) (C) NDPS Act and 25, 29 (1) Act gpufhuk;
tof;F gjpT nra;J> vjphpfis jpNuf Nrhjid
nra;J fhty; epiya ghuh trk; xg;gilj;Njd;.
14.3. No other document was produced on the side of the accused
to contradict the contents of Ex.P.10. Without considering the entire
evidence of P.W7 in his cross examination, merely relying on some stray
portions of his deposition, this Court is not inclined to doubt over the
Page 55/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
genuineness of Ex.P10-FIR. It is a well settled law that failure to
describe the name of the accused in the front portion of the FIR is not a
ground to doubt the content of the FIR and the same is fortified by the
following judgments of the Hon'ble Supreme Court.
14.4. 2018(3) SCC 66 – Latesh Vs. State of Maharashtra:
“ Merely because names of accused not stated and their names are
not specified in FIR, that may not be a ground to doubt the contents of
FIR and because of thier prosecution cannot be thrown out on such
count”
14.5. 2018 (9) SCC 429. Motiram Padel Joshi Vs. State of
Maharashtra:
“Omission as to the names of assailants may not all
times be fatal to prosecution – unless there are indication
of fabrication, Court cannot reject the prosecution case as
given in the FIR merely because of omission. Object of FIR
is to set law in motion. FIR registered without delay and
prompt registration of FIR itself lends assurance to
prosecution case.”
14.6. Applying the above principle, only on the basis of mere
omission to note the names of the absconding accused in the front page
Page 56/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
of the FIR, namely, in column No.7, the doubt expressed by the learned
counsel for the appellant/A5 regarding genuineness of the FIR cannot be
accepted, when their names are clearly mentioned in the body of the FIR.
15. Preparation of Two Athakshi:
15.1. The learned counsel for appellants made a submission that
after the arrest in this case, preventive detention was passed against the
appellants. In the preventive detention order, the appellants were served
with relevant documents. The recovery mahazar (Athakshi) was also
served. In the said documents, the signature of the accused were
conspicuously absent. But in the Athakshi produced before this Court,
the signature of A1-Kalimuthu @ Vellaikali is found. Athakshi is a basic
document and hence, there is a serious doubt over the preparation of the
said document. Therefore, the benefit of doubt is to be given to the
accused.
15.2. The submission of the learned counsel for the appellants
lacks merits for the simple reason that the contra Athakshi is not
available before this Court.
15.3. The said Ex.P4-Athakshi has been prepared and produced
before the learned Judicial Magistrate at the time of remand along with
Page 57/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
other documents on the date of occurrence (i.e. 20.9.2020) itself.
15.4. Without producing and marking the contra documents, it
cannot be pleaded that there are contradictions between the documents.
The Hon’ble Three Judges Bench of the Hon'ble Supreme Court in
Munna Pandey Vs. State of Bihar reported in 2023 SCC Onlince Sc
1103, stated that how contradiction shall be elicited. The relevant
paragraphs as follows:
“49.In the aforesaid context, we may refer to
and rely on a three-Judge Bench decision in the case
of V.K. Mishra v. State of Uttarakhand,(2015) 9 SCC
588, wherein this Court, after due consideration of
Section161 of the CrPC and Section 145 of the
Evidence Act, observed as under:—
“16. Section162 CrPC bars use of statement of
witnesses recorded by the police except for the limited
purpose of contradiction of such witnesses as
indicated there. The statement made by a witness
before the police under Section 161(1) CrPC can be
used only for the purpose of contradicting such
witness on what he has stated at the trial as laid down
in the proviso to Section 162(1) CrPC. The statements
under Section 161CrPC recorded during the
investigation are not substantive pieces of evidence
Page 58/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
but can be used primarily for the limited purpose : (i)
of contradicting such witness by an accused under
Section 145of the Evidence Act; (ii) the contradiction
of such witness also by the prosecution but with the
leave of the Court; and (iii) the re-examination of the
witness if necessary.
17.The court cannot suo motu make use of statements
to police not proved and ask questions with reference
to them which are inconsistent with the testimony of
the witness in the court. The words in
Section162CrPC“if duly proved” clearly show that
the record of the statement of witnesses cannot be
admitted in evidence straightaway nor can be looked
into but they must be duly proved for the purpose of
contradiction by eliciting admission from the witness
during cross-examination and also during the cross-
examination of the investigating officer. The statement
before the investigating officer can be used for
contradiction but only after strict compliance with
Section 145 of the Evidence Act that is by drawing
attention to the parts intended for contradiction.
18. Section 145of the Evidence Act reads as under:
“145. Cross-examination as to previous statements in
writing.—A witness may be cross-examined as to
previous statements made by him in writing or
Page 59/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
reduced into writing, and relevant to matters in
question, without such writing being shown to him, or
being proved; but, if it is intended to contradict him by
the writing, his attention must, before the writing can
be proved, be called to those parts of it which are to
be used for the purpose of contradicting him.”
19.Under Section 145 of the Evidence Act when it is
intended to contradict the witness by his previous
statement reduced into writing, the attention of such
witness must be called to those parts of it which are to
be used for the purpose of contradicting him, before
the writing can be used. While recording the
deposition of a witness, it becomes the duty of the trial
court to ensure that the part of the police statement
with which it is intended to contradict the witness is
brought to the notice of the witness in his cross-
examination. The attention of witness is drawn to that
part and this must reflect in his cross-examination by
reproducing it. If the witness admits the part intended
to contradict him, it stands proved and there is no
need to further proof of contradiction and it will be
read while appreciating the evidence. If he denies
having made that part of the statement, his attention
must be drawn to that statement and must be
mentioned in the deposition. By this process the
contradiction is merely brought on record, but it is yet
Page 60/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
to be proved. Thereafter when investigating officer is
examined in the court, his attention should be drawn
to the passage marked for the purpose of
contradiction, it will then be proved in the deposition
of the investigating officer who again by referring to
the police statement will depose about the witness
having made that statement. The process again
involves referring to the police statement and culling
out that part with which the maker of the statement
was intended to be contradicted. If the witness was not
confronted with that part of the statement with which
the defence wanted to contradict him, then the court
cannot suo motu make use of statements to police not
proved in compliance with Section145 of the Evidence
Act that is, by drawing attention to the parts intended
for contradiction.”
(Emphasis supplied)
50. What is important to note in the aforesaid decision
of this Court is the principle of law that if the witness
was not confronted with that part of the statement with
which the defence wanted to contradict him, then the
Court cannot suo motu make use of statements to
police not proved in compliance with Section145of the
Evidence Act. Therefore, it is of utmost importance to
prove all major contradictions in the form of material
omissions in accordance with the procedure as
Page 61/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
established under Section145 of the Evidence Actand
bring them on record. It is the duty of the defence
counsel to do so.”
15.5. It is well settled principle that the preventive detention
documents relied by the detaining authority are not relevant to decide the
trial of the offence. Further, the said documents are also not marked here.
15.6. Hence, the submission of the learned counsel for the
appellants cannot be accepted when the Athakshi-Ex.P4 with the
signature of the appellants reached with the remaining contraband along
with the samples at the time of remand of the accused on the date of
occurrence itself, i.e., on 20.09.2020.
15.7. For the above reasons, the argument of the learned counsel
for the appellants that two Athakshi are prepared cannot be accepted.
16. Compliance of Section 50 of the NDPS Act:-
16.1. The learned counsel made a lengthy submission that P.W7
and his team conducted search of the body and vehicle and hence,
mandatory requirement of obtaining individual written consent letter has
not been done to make search in front of the learned Magistrate or the
Page 62/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
Gazetted Officer. In this case, joint written consent letter was served and
hence, there was total violation of Section 50 of the NDPS Act and on
this sole ground, all the appellants are entitled to acquittal and to fortify
the same, they relied the following judgments, in the case of the State of
Rajasthan Vs. Paramand reported in 2014 (5) SCC 345 and 2023 (1)
LW (Cri) 904 wherein it has been held as follows:
“In State of H.P. v. Pawan Kumar (2005) 4 SCC 350 :
2005 SCC (Cri) 943, a three-Judge Bench of this
Court held that a person would mean a human being
with appropriate coverings and clothing and also
footwear. A bag, briefcase or any such article or
container, etc. can under no circumstances be treated
as a body of a human being. Therefore, it is not
possible to include these articles within the ambit of
the word “person” occurring in Section 50 of the
NDPS Act. The question is, therefore, whether Section
50 would be applicable to this case because opium
was recovered only from the bag carried by
Respondent 1 Parmanand.
13. In Dilip v. State of M.P. (2007) 1 SCC 450 :
(2007) 1 SCC (Cri) 377, on the basis of information,
search of the person of the accused was conducted.
Nothing was found on their person. But on search of
the scooter they were riding, opium contained in
Page 63/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
plastic bag was recovered. This Court held that :
(SCC p. 456, para 16)
“16. … provisions of Section 50 might not have
been required to be complied with so far as the search
of scooter is concerned, but keeping in view the fact
that the person of the accused was also searched, it
was obligatory on the part of the officers to comply
with the said provisions.”
14.In Union of India v.Shah Alam (2009) 16
SCC 644 : (2010) 3 SCC (Cri) 377, heroin was first
recovered from the bags carried by the respondents
therein. Thereafter, their personal search was taken
but nothing was recovered from their person. It was
urged that since personal search did not lead to any
recovery, there was no need to comply with the
provisions of Section 50 of the NDPS Act. Following
Dilip(2007) 1 SCC 450 : (2007) 1 SCC (Cri) 377, it
was held that since the provisions of Section 50 of the
NDPS Act were not complied with, the High Court
was right in acquitting the respondents on that
ground.
15. Thus, if merely a bag carried by a person is
searched without there being any search of his
person, Section 50 of the NDPS Act will have no
application. But if the bag carried by him is searched
and his person is also searched, Section 50 of the
Page 64/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
NDPS Act will have application. In this case,
Respondent 1 Parmanand's bag was searched. From
the bag, opium was recovered. His personal search
was also carried out. Personal search of Respondent
2 Surajmal was also conducted. Therefore, in the light
of the judgments of this Court mentioned in the
preceding paragraphs, Section 50 of the NDPS Act
will have application.
16.2. The Hon'ble Three member bench in the State of Punjab
Vs. Baljinder Singh, 2019 (10) SCC 473 held that the principle laid
down by the Hon’ble Two member Bench of Hon’ble Supreme Court
in 2007 (1) SCC 450 is not correct. The relevant paragraph is
extracted hereunder:
“15.As regards applicability of the
requirements under Section 50 of the Act is
concerned, it is well settled that the mandate of
Section 50 of the Act is confined to “personal
search” and not to search of a vehicle or a container
or premises.
16. The conclusion as recorded by the
Constitution Bench in para 57 of its judgment in
State of Punjab v. Baldev Singh, (1999) 6 SCC 172 :
Page 65/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
1999 SCC (Cri) 1080 clearly states that the
conviction may not be based “only” on the basis of
possession of an illicit article recovered from
personal search in violation of the requirements
under Section 50 of the Act, but if there be other
evidence on record, such material can certainly be
looked into.
17. In the instant case, the personal search of
the accused did not result in recovery of any
contraband. Even if there was any such recovery, the
same could not be relied upon for want of
compliance of the requirements of Section 50 of the
Act. But the search of the vehicle and recovery of
contraband pursuant thereto having stood proved,
merely because there was non-compliance of Section
50 of the Act as far as “personal search” was
concerned, no benefit can be extended so as to
invalidate the effect of recovery from the search of
the vehicle. Any such idea would be directly in the
teeth of conclusion as aforesaid.
18. The decision of this Court in Dilip v. State
of M.P., (2007) 1 SCC 450, however, has not
adverted to the distinction as discussed herein above
and proceeded to confer advantage upon the accused
even in respect of recovery from the vehicle, on the
ground that the requirements of Section 50 relating
to personal search were not complied with. In our
Page 66/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
view, the decision of this Court in the said judgment
in Dilip v. State of M.P., (2007) 1 SCC 450 : (2007)
1 SCC (Cri) 377 is not correct and is opposed to the
law laid down by this Court in State of Punjab v.
Baldev Singh, (1999) 6 SCC 172 : 1999 SCC (Cri)
1080 and other judgments.
19. Since in the present matter, seven bags of
poppy husk each weighing 34 kg were found from the
vehicle which was being driven by accused Baljinder
Singh with the other accused accompanying him,
their presence and possession of the contraband
material stood completely established.”
16.3. When PW.7 received information about the transportation
and possession of huge quantity of Ganja in the car and recovered the
same from the car, this Court has no hesitation to hold that Section 50 of
the NDPS Act is not applicable. In said circumstance, any alleged
infirmities in obtaining consent as envisaged under Section 50 of the
NDPS Act does not affect the prosecution case of recovery when the
evidence of prosecution is otherwise cogent and trustworthy.
17. Non-examination of the independent witnesses:
17.1. The learned counsel for A1 submitted that the occurrence
Page 67/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
place was a busy public place in the Madurai City. Therefore, non-
examination of the independent witnesses creates doubt over the
recovery. The said submission cannot be accepted for the reason that it is
the specific case of the P.W7 that he requested two independent persons
to witness the recovery but they refused. According to the prosecution,
four accused were chased and caught by the police and in the said tensed
scenario, it is common that no independent witnesses would come
forward to witness the recovery. Apart from that the Hon'ble Supreme
Court in the following Judgment stated that the non-examination of the
independent witnesses is not a ground to disbelieve the evidence of the
police witnesses when their evidence is cogent and trustworthy without
any infirmity. In this case, this Court does not find any infirmity in the
material portion of the evidence of all the witnesses, namely, P.Ws.1, 2
&7 relating to the recovery of the contraband.
17.2. Ram Swaroop v. State (Govt. of NCT of Delhi) 2013 (14)
SCC 235:
“7. .... We may note here with profit that there is
Page 68/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
no absolute rule that police officers cannot be cited
as witnesses and their depositions should be treated
with suspect. In this context we may refer with profit
to the dictum in State of U.P. v. Anil Singh [1988 Supp
SCC 686 : 1989 SCC (Cri) 48] wherein this Court
took note of the fact that generally the public at large
are reluctant to come forward to depose before the
court and, therefore, the prosecution case cannot be
doubted for non-examining the independent
witnesses.
8. At this juncture a passage from State (Govt. of
NCT of Delhi) v. Sunil [(2001) 1 SCC 652 : 2001 SCC
(Cri) 248] is apt to quote : (SCC p. 662, para 21)
“21. .. At any rate, the court cannot start with the
presumption that the police records are
untrustworthy. As a proposition of law the
presumption should be the other way around. That
official acts of the police have been regularly
performed is a wise principle of presumption and
recognised even by the legislature. Hence when a
police officer gives evidence in court that a certain
article was recovered by him on the strength of the
statement made by the accused it is open to the court
to believe the version to be correct if it is not
otherwise shown to be unreliable. It is for the
accused, through cross-examination of witnesses or
through any other materials, to show that the
evidence of the police officer is either unreliable or at
least unsafe to be acted upon in a particular case. If
the court has any good reason to suspect the
truthfulness of such records of the police the court
could certainly take into account the fact that no
other independent person was present at the time of
recovery. But it is not a legally approvable procedure
to presume the police action as unreliable to start
with, nor to jettison such action merely for the reason
that police did not collect signatures of independent
persons in the documents made contemporaneous
Page 69/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
with such actions.”
10. Keeping in view the aforesaid authorities, it
can safely be stated that in the case at hand there is
no reason to hold that non-examination of the
independent witnesses affects the prosecution case.”
17.3. Kallu Khan v. State of Rajasthan, 2021 SCC OnLine
SC 1223:
“16. The issue raised regarding conviction solely
relying upon the testimony of police witnesses,
without procuring any independent witness, recorded
by the two courts, has also been dealt with by this
Court in
the case of Surinder Kumar (supra) holding that
merely because independent witnesses were not
examined, the conclusion could not be drawn that
accused was falsely implicated. Therefore, the said
issue is also well-settled and in particular, looking to
the facts of the present case, when the conduct of the
accused was found suspicious and a chance recovery
from the vehicle used by him is made from public
place and proved beyond reasonable doubt, the
appellant cannot avail any benefit on this issue. In
Page 70/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
our view, the concurrent findings of the courts does
not call for interference.
18. Submission regarding the previous antecedents :
18.1. The learned Additional Public prosecutor submitted that the
learned trial Judge noted the previous antecedents and correctly
appreciated the evidence and passed the conviction and sentence of
imprisonment.
18.2. The learned counsel for A1 submitted that the previous
criminal antecedents of A1 cannot be a ground for conviction in a
criminal case. According to the learned counsel for A1, as per Section 54
of the Evidence Act the previous antecedents is not ground to convict
without legal evidence in this case. Therefore, the finding of the learned
trial Judge and the submission of the learned Additional Public
Prosecution is contrary to Section 54 of the Evidence Act and also as per
the law laid down by the Hon'ble Supreme Court in 2019 (12) SCC 460
[Rajendra Pralhadrao Wasnik v. State of Maharashtra] and
1977(3)SCC268[Ram Lakhan Singh v. State of U.P].
18.3. This Court has re-appreciated the evidence independently
without being influenced by the claim of previous antecedents and comes
to a conclusion that the prosecution proved the case against all the
Page 71/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
accused that they transported the 25 kgs quantity of Ganja in the car and
the same was recovered as per the procedure and proper investigation
was conducted and fair trial was concluded. The recovery of the
contraband from the car in which all the appellants travelled is clearly
proved through the cogent and trustworthy evidence of PWs.1, 2 & 7.
The sample was properly taken and the same was properly sealed and the
remaining contraband was also properly sealed and packed and the same
was produced before the Court on the same day along with the accused at
the time of the remand. The same was also verified by the learned
Judicial Magistrate. In the said circumstances, this Court concurs with
the finding of the learned trial Judge in convicting the appellant and
imposing the sentence of imprisonment along with fine.
19. The learned counsel for the appellants submitted that the delay
in producing the contraband before the Special Court is fatal to the
prosecution. In this case, P.W8 produced the entire contraband and
samples under Form 91 on the date of occurrence itself before the learned
Judicial Magistrate. The learned Judicial Magistrate verified the same
and directed to produce before the Special Court. P.W8 produced the
same before the Special Court with delay. The said delay is immaterial
when the contraband and the samples are produced before the Special
Page 72/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
Court with seal. It is not the case of the appellants that the seal was
tampered. In the said circumstances, the said delay is not fatal. The
Hon'ble Supreme Court in the judgment of Hardip Singh v. State of
Punjab, reported in (2008) 8 SCC 557 has held that delay in producing
the contraband and samples are not material when the samples are
produced with seal intact. The relevant paragraphs are as follows:
“17. The then Station House Officer, Inspector Baldev Singh, who
was examined as PW 1, was posted at Police Station Ajnala on the
date of occurrence. He received the said samples of opium along
with case material, being produced before him by PW 5. It has
come on evidence that Inspector Baldev Singh kept the entire case
property with him till it was deposited in the office of the Chemical
Examiner, Amritsar on 30-9-1997 through ASI Surinder Singh (PW
3). It has also come on evidence that till the date the parcels of
sample were received by the chemical examiner, the seal put on the
said parcels was intact. That itself proves and establishes that there
was no tampering with the aforesaid seal in the sample at any stage
and the sample received by the analyst for chemical examination
contained the same opium which was recovered from the
possession of the appellant. In that view of the matter, delay of
about 40 days in sending the samples did not and could not have
caused any prejudice to the appellant. The aforesaid contention,
therefore, also stands rejected.
20. In Ouseph v. State of Kerala [(2004) 10 SCC 647 : 2005 SCC
(Cri) 595] it was held by this Court that under the provisions of
Section 55 of the Act, the requirement may not be mandatory.
However, in that case, in view of peculiar facts of the case and as
the contraband articles were kept in totally unsealed condition for
near about two months it was held that the same creates doubt.”
20. Summary of Discussion:
Finding Paragraph Nos.
Brief facts 2-4
Submission of the learned Counsel for the appellants 5-5.13
Page 73/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
Submission of the learned APP 6-6.13
Proof of Recovery of Contraband 7-7.2
Conscious possession 8-8.5
Compliance of Section 57 of the NDPS Act: 9-9.10
Plea of non-compliance of Section 52A of the NDPS Act 10-10.6
Contradiction and Discrepancies 11-11.5(iii)
Compliance of Rule 32 of Madras High Court Criminal 12-12.5
Rules of Practice
Section 313 Cr.P.C proceedings 13-13.3
Non- mentioning of the absconding accused in column 14-14.6
No.7 of FIR (Ex.P10)
Preparation of Two Athakshi 15-15.7
Compliance of Section 50 of the NDPS Act 16-16.3
Non-examination of the independent witnesses 17-17.3
Submission regarding Previous antecedents 18-18.3
Conclusion 20 -20.2 & 21
21.Conclusion :-
21.1. From the evidence, it is apparent that P.W7 received secret
information and the said secret information received was duly reduced in
writing and forwarded to the immediate Superior and on his instruction
i.e., “Received and take action as per law”, the team has proceeded to
the spot mentioned in the information and thereafter, search, seizure and
arrest had been done. Samples were duly taken and packed with seals and
the remaining contraband duly packed separately. The said samples and
Page 74/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
the remaining contraband were produced before the learned Judicial
Magistrate on the date of occurrence itself. The learned Judicial
Magistrate verified the same. The recovered contraband of 25kgs of
Ganja is more than the commercial quantity i.e., 20 Kg. The said samples
were subjected to analysis and the Report confirmed the presence of
“cannabis”.
21.2. The entire seized contraband namely recovered Ganja was
produced before the Court and marked without any dispute as M.O.4 and
M.O.7. The prosecution witnesses viz., P.W.1, P.W.2 and PW.7, deposed
before the Court in a cogent manner and their evidence is trustworthy and
this Court finds no infirmities in their evidence either to disbelieve or
discard the prosecution case that the appellants transported 25kgs of
Ganja in A1's private car and the same was in their conscious possession.
A2, A3, A4 and A6 never said anything in their 313 Cr.P.C questioning
nor produced any evidence to disprove the case of the prosecution in
compliance with terms of Sections 54 and 35 of the NDPS Act. A1 has
taken a plea that he was arrested at Courtallam and a false case was
registered. In view of the discussion made earlier, the said version is not
a bonafide one. At the time of remand, he never disclosed the said fact
and to prove the same, he never adduced any evidence. Similarly A5
Page 75/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
took a stand during Section 313 Cr.P.C proceedings that he was arrested
at some other place and a false case was registered. But to prove the
same, he did not produce any evidence. Further their defence does not
gain support from the remaining accused A2, A3, A4 and A6. The
presence of minor discrepancy and contradiction is natural on the
principle that without minor discrepancy, there cannot be a single true
witness. Therefore, the prosecution has clearly proved their case beyond
reasonable doubt and the accused never dispelled the presumption as
required under Section 35 of the NDPS Act and this Court does not find
any infirmities in the judgment of the trial Court. Thus, the questions are
answered against the appellants. Therefore, all the appeals deserve to be
dismissed.
22. In the result, all the Criminal Appeals stand dismissed.
Consequently, connected miscellaneous petitions are closed.
03.10.2023
NCC : Yes/No
Index : Yes/No
Internet: Yes/No
PJL
Note: Issue order copy on 09.10.2023.
Page 76/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
To
1. The Special Judge,
II-Additional Special Court for EC and NDPS Act cases, Madurai.
2.The Inspector of Police,
Karimedu Police Station, Madurai City.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
4. The Section Officer,
Criminal Records, Madurai Bench of Madras High Court,
Madurai.
Page 77/78
https://www.mhc.tn.gov.in/judis
Crl.A.(MD).Nos.492 & 500 of 2022 and 347 &577 of 2023
K.K.RAMAKRISHNAN, J.
PJL Judgment made in Crl.A(MD)Nos.492, 500 of 2022 and 347 & 577 of 2023 03.10.2023 Page 78/78 https://www.mhc.tn.gov.in/judis