Madras High Court
Kasi Rajan vs The State Rep By Its on 15 May, 2025
Crl.A.(MD).No.143 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 29.01.2025
Pronounced On : 15.05.2025
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
Crl.A.(MD).No.143 of 2020
Kasi Rajan ... Appellant/Accused
Vs.
The State rep by its,
The Intelligence Officer,
Narcotics Control Bureau,
Madurai Sub-Zone,Madurai.
NCB F.No.48/1/01/2014/NCB/MDU
... Respondent/Complainant
PRAYER : Criminal Appeal has been filed under Section 374(2) of the
Criminal Procedure Code, to call for the records relating to the judgment in
C.C.No.99 of 2018 dated on 09.01.2020 on the file of the Principal Special
for EC & NDPS Act Cases, Madurai, and set aside the same and acquit the
appellant from all charges framed against him.
For Appellant : Mr.G.Murugendran
For Respondent : Mr.R.C.Arulvadivel @ Sekar
Special Public Prosecutor for NCB Cases
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Crl.A.(MD).No.143 of 2020
JUDGMENT
The appellant/Accused in C.C.No.99 of 2018 on the file of the Principal Special for EC & NDPS Act Cases, Madurai, has filed this appeal, challenging the conviction and sentence imposed against him on 09.01.2020, wherein, he was convicted for the offence under Section 8(c) r/w 20(b)(ii)(C) of the NDPS Act for the illegal possession of 29.300 kg of ganja.
2.The brief facts of the case as follows:
2.1. On 07.05.2016, at 12.30 p.m, P.W.1, Intelligence Officer, Madurai, received a secret information from the informer that the appellant would be receiving ganja from a ganja supplier near Rice Mill, Pannikundu, Usilampatti, Madurai District and he also stated about the identidy of the appellant. Thereafter, P.W.1 reduced the same in writting under Ex.P.1 and informed the same to his Immediate Superior, P.W.4 and he acknowledged the same under Ex.P.9. Thereafter, P.W.1 along with P.W.2 and one Dhayanidhi went to the spot with necessary equipment and mounded surveillance at 04.30 p.m. At about 05.00 p.m, the accused came there and Page 2 of 27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/05/2025 08:28:53 pm ) Crl.A.(MD).No.143 of 2020 dragged out two bags from the bushes near that place. Thereafter, P.W.1 and his team intercepted the appellant and introduced themselves as officers and he was informed about his right to be searched before the Judicial Magistrate or the Gazetted officer as required under Section 50 of the NDPS Act. The appellant consented to conduct the search by the officer himself and hence, P.W.1 opened the two gunny bags and found 29.300 kg of ganja.
He recovered the same after following the proceedure and took the samples of (each 25 grams) S1 and S2 and properly sealed the same. Thereafter, he arrested the appellant. The appellant also gave a confession and recorded the confession. After that, P.W.1 handed over the accused along with contraband and a detailed report under Section 57 of NDPS Act was sent to P.W.5. P.W.5 remanded the accused along with contraband and case was registered in NCB F.No.48/1/01/2014/NCB/MDU for the offence under Section 8(c) r/w 20(b)(ii)(C), 27(A), 28 & 29 of NDPS Act. After completing all the formalities, the learned Judicial Magistrate remanded the appellant. Thereafter, P.W.5 conducted the investigation and filed the final report before the Principal Special Court for EC & NDPS Act Cases, MAdurai, and the same was taken on file in C.C.No.99 of 2018. Page 3 of 27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/05/2025 08:28:53 pm ) Crl.A.(MD).No.143 of 2020 2.2. The learned trial Judge issued summons to the accused and on his appearance, served the copies under Section 207 Cr.P.C. and framed the necessary charges and questioned the accused. The accused pleaded not guilty and stood for trial.
2.3. The prosecution, to prove the case examined P.W.1 to P.W.5 and exhibited 32 documents as Ex.P.1 to Ex.P.32 and produced 11material objects as M.O.1 to M.O.11. The learned trial Judge questioned the accused under Section 313 of Cr.P.C., proceedings by putting the incriminating evidence available from prosecution witnesses and documents. The accused denied the same as false and the case was posted for examination of the witnesses on the side of the appellant. On the side of the defence, no one was examined as witness and no document was marked.
2.4. The learned trial Judge after considering the oral and documentary evidence, convicted the accused for the offence under Sections 8(c) r/w 20(b)(ii)(c) of the NDPS Act, and sentenced him to undergo 10 years Rigorous Imprisonment and to pay a fine of Rs.1,00,000/- (Rupees Page 4 of 27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/05/2025 08:28:53 pm ) Crl.A.(MD).No.143 of 2020 One Lake only) in default, to undergo, 6 months Simple Imprisonment for the offence under Section 8(c) r/w 20(b)(ii)(C) of the NDPS Act.
3. Challenging the same, present appeal has been filed.
4. Submissions made by the learned counsel for the appellant:-
4.1. In view of the material discrepancies between Ex.P.1 to Ex.P. 9 and the evidence of P.W.1 & P.W.4 relating to reducing of the information under Section 42 of the Act, the compliance under Section 42 of the Act was not proved by the prosecution.
4.2. Complaint was given by P.W.5. He is not the competent or authorised person to lodge the complaint. Therefore, the complaint itself is illegal and cognizance taken on the basis of complaint filed by incompetent person is not legally valid.
4.3. One Sankaranarayanan of the Department acted as a translator and he actively participated in the recovery proceedings. There was a complaint against the said person that he had received money from one Ravi @ Ravichandran and P.W.2 also admitted the same. Therefore, the registration of case itself suspicious.
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https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/05/2025 08:28:53 pm ) Crl.A.(MD).No.143 of 2020 4.4. It is the admitted case that the appellant sustained injuries on his shoulder and he was admitted in the hospital before the remand. In the said circumstances, it is unbelievable that the appellant handled two bags of ganja containing the quantity of 29.300 kg of ganja as deposed by P.W.1. The said evidence of P.W.1 is not corroborated by the evidence of the independent witness namely, P.W.2. P.W.2 clearly deposed that he is unable to identify the accused before the Court. He has not even deposed about the place of the occurrence. Therefore, the possession and recovery was not clearly proved by legal evidence.
4.5. The recovery was made within the jurisdiction of Thirumangalam. However, the accused was produced before the learned Judicial Magistrate, Madurai. It creates suspicion over the arrest and recovery of the contraband from the appellant.
4.6. There was no material available to prove the weighing scale to weigh the contraband and it was not disclosed.
4.7. There was no particulars about the weight of the contraband. Page 6 of 27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/05/2025 08:28:53 pm ) Crl.A.(MD).No.143 of 2020 4.8. Apart from that, there was no reference about the measurement whether weight was measured through electronic machine or ordinary weighing machine. Therefore, the same creates doubt over the prosecution case.
4.9. There is time discrepancy between the arrival of the independent witness along with P.W.1, which is material in the particular facts of the case. According to the learned counsel for the appellant, P.W.2 is a chance witness and his presence at the place situated on the way to the occurrence place i.e., from Pannikundu to Chellampatti is doubtful. He was directed by the officer to accompany him as a independent witness to recover the contraband and arrest the accused. The recovery was made at 04.30 p.m (Ex.P.2) and the information was received on 22.10.2017 at 02.30 p.m in their office situated at Madurai City. It is unbelievable to reach the occurrence place, which is more than 20 km from their office within short duration that too, after calling independent witnesses at Chellampatti village and reaching the occurrence place with the independent witnesses. Page 7 of 27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/05/2025 08:28:53 pm ) Crl.A.(MD).No.143 of 2020 4.10. P.W.1 received the information through the informant on 22.10.2017. At that time, the informant also stated about the identity of the appellant. Hence, the informant has not accompanied P.W.1. In the said circumstances, the arrest itself is illegal and the consequent recovery is also not believable.
4.11. It is the specific case of P.W.2 that he recovered the amount of Rs.8,500/-. They failed to produce the godown receipt for the deposit of seized contraband and also not produced the weighment particulars of the contraband. Therefore, in all aspects, the prosecution case is bristled with infirmities and inconsistencies and hence, he seeks acquittal for the appellant.
5. The learned Special Public Prosecutor for NCB Cases made the following submissions :-
5.1. Ex.P.1 clearly speaks that P.W.1 received the information and he got permission to conduct raid and seized contraband. The same was marked without any objection. Therefore, the plea of the counsel for the appellant that there was no compliance of 42 of the Act is not correct. Page 8 of 27
https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/05/2025 08:28:53 pm ) Crl.A.(MD).No.143 of 2020 5.2. After seizure of the contraband, summons under Section 67 of the Act was issued to the appellant and he voluntarily appeared before the NCB. He refused to give statement under Section 67 of the Act and thereafter, he was arrested and produced before the jurisdictional Court and this is not a circumstance to disbelieve the evidence of P.W.1 and P.W.2, who have clearly deposed about the recovery of the contraband on the date of occurrence.
5.3. The independent witness, P.W.2, due to the passage of time was unable to identify the accused before the Court. But, he deposed that his statement under Section 67 of the Act was recorded in which, he admitted the signature in the statement under Section 67 of the Act. Therefore, the learned trial Judge correctly appreciated Ex.P.4 and his evidence before the Court to believe that the recovery was made in his presence from the appellant, which corroborated with the evidence of P.W.1.
5.4. The motive alleged about Sankaranarayanan is mere pleading and no separate materials are available on record to prove that the Page 9 of 27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/05/2025 08:28:53 pm ) Crl.A.(MD).No.143 of 2020 Sankaranarayanan was instrumental for the episode of the recovery of ganja from the appellant.
5.5. The non-production of the weighment receipt is immaterial when the entire contraband was produced before the learned Judicial Magistrate at the time of remand itself and the same was received and endorsed by the learned Judicial Magistrate. P.W.1 clearly deposed about the weight of the entire contraband. In the said circumstances, there was no necessity to produce any other material. Hence, the prosecution clearly proved all the materials without any reasonable doubt. Therefore, he prayed for dismissal of this appeal by confirming the conviction and sentence passed by the learned trial Judge.
5.6. This Court considered the rival submissions and perused the materials available on record and also the precedents relied upon by them.
6. The question arising for consideration in this appeal is that whether the prosecution has established the case beyond reasonable doubt Page 10 of 27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/05/2025 08:28:53 pm ) Crl.A.(MD).No.143 of 2020 against the appellant and the conviction and sentence imposed by the learned trial Judge against the appellant can be sustained or not?
7. Discussion on the compliance of the Section 42 of the Act:-
7.1. The prosecution produced two exhibits under Ex.P.1 and Ex.P.9 to show the compliance under Section 42 of the Act. Ex.P.1 was disowned by the superior officer namely, P.W.4. P.W.1 deposed as follows:-
vd;dplk; fhl;lg;gLk; jftiy ehd;jhd; gjpT nra;Njd;. mJ m.rh.M9. m.rh.M1y; fz;fhzpg;ghshpd; Nkw;Fwpg;G ,y;iy vd;why; rhpjhd;. m.rh.M9y; fz;fhzpg;ghshpd; ifnaOj;J ,y;iy vd;why;rhpjhd;. md;iwa Njjpapy; 2 fz;fhzpg;ghsUk; tpLKiwapy; ,Ue;jjhy; kz;ly ,af;Feh; Nkw;Fwpg;G nra;Js;shh;. m.rh.M1y; kz;ly ,af;Feh; Nkw;Fwpg;G nra;atpy;iy vd;why; rhpjhd;. jftypy; fQ;rhtpd; vil Fwpg;gplgltpy;iy vd;why; rhpjhd;. 22k; Njjp jftiy ePjpkd;wj;jpy; xg;gilf;ftpy;iy vd;why; rhpjhd;.
7.2. From that evidence, it is clear that there was no endorsement of acknowledgement of the receipt of the information by the superior in Ex.P.1. The signature of the Regional Director was absent in Ex.P.1. Apart from that, he also admitted that he has not produced the information received on 22.10.2014 before the Court. Apart from that, P.W.4 deposed as follows:-Page 11 of 27
https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/05/2025 08:28:53 pm ) Crl.A.(MD).No.143 of 2020 m.rh.M.1-y; ehd; Nkw;Fwpg;G vJTk; nra;atpy;iy. m.rh.M.9-y; ehd; Nkw;Fwpg;G nra;Js;Nsd;. vd;Dila Nkw;Fwpg;G vJTk; ,y;yhj Mtzk; m.rh.M1 ePjpkd;wj;jpy; vg;gb jhf;fy; nra;ag;gl;lJ vd;W vdf;F njhpahJ. gphpT 57d; fPohd mwpf;ifia ehd; ghh;itapl;l gpd;dh; kPz;Lk; kJiuf;F mDg;gpajhf rk;ke;jkhf nl];Ngr; vz; vJTk; guhkhpg;gJ fpilahJ. rq;fuehuazd; kw;Wk; kw;w mjpfhhpfs; Nrh;e;J &.5 yl;rk; ngw;W nfhz;L ngha; tof;F Nghl;Ls;sjhf mjpy; $wg;gl;bUe;jJ.
7.3. When both P.W.1 and P.W.4 deposed about the absence of signature under Ex.P.1. But, Ex.P.1 contained the signature of P.W.4 and the same was produced before the Court. In the said circumstances, the compliance of Section 42 is not correct. When two documents were produced before the Court and the officer disowned the signature in the document under Ex.P.1, there is a suspicion over the preparation of the documents whether Section 42 of the Act was complied. For better appreciation, this Court extracts Ex.P.1 and Ex.P.9. Page 12 of 27
https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/05/2025 08:28:53 pm ) Crl.A.(MD).No.143 of 2020 Page 13 of 27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/05/2025 08:28:53 pm ) Crl.A.(MD).No.143 of 2020 Page 14 of 27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/05/2025 08:28:53 pm ) Crl.A.(MD).No.143 of 2020 7.4. Ex.P.1 contained the signature of the officer but he disowned the same. Therefore, this Court has no other reason except to accept the argument of the learned counsel for the appellant that the compliance of Section 42 of the Act was not proved in this case. Once the compliance of Section 42 was not proved, the appellant is entitled to be acquitted as per the judgment of the Hon'ble Constitution Bench of the Supreme Court Karnail Singh v. State of Haryana, reported in (2009) 8 SCC 539. The said fact is further strengthened by the evidence of P.W.2. P.W.2 also deposed that report under Section 57 of the Act also was not sent to the officer. The relevant evidence is as follows:-
“57d; fPohd mwpf;ifia cah; mjpfhhpf;F mDg;gpaJ Fwpj;J Mtzk; vJTk; ehd; jhf;fy; nra;atpy;iy” “gphpT 57d; fPohd mwpf;ifia ehd; ghh;itapl;l gpd;dh; kPz;Lk; kJiuf;F mDg;gpajhf rk;ke;jkhf nl];Ngr; vz; vJTk; guhkhpg;gJ fpilahJ. Rq;fuehuhazd; kw;Wk; kw;w mjpfhhpfs; Nrh;e;J &.5 yl;rk; ngw;W nfhz;L ngha; tof;F Nghl;Ls;sjhf mjpy; $wg;gl;bUe;jJ.” 7.5. From the above evidence, compliance of the Sections 42 and Page 15 of 27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/05/2025 08:28:53 pm ) Crl.A.(MD).No.143 of 2020 57 of the Act is doubtful. The Hon'ble Supreme Court has held that isolated circumstance of non-compliance of Section 57 of the Act is not a ground to acquit the accused. When there are other circumstances, non-
compliance of Section 57 of the Act is material. In this case, the compliance of Section 42 of the Act as stated in Section 57 of the NDPS Act is false and therefore, they failed to comply with Section 57 of the Act. Therefore, these material circumstances, pave the way to doubt the recovery of the contraband as projected by the prosecution.
8. Discussion on the evidence of P.W.2:-
8.1. P.W.2 is an independent witness. He was examined to prove the presence of the accused in the occurrence place and recovery of the contraband on the disclosure of the appellant. P.W.2 hails from Madurai and he would occasionally visit Chellampatti. Therefore, he is a chance witness.
The Hon'ble Supreme Court laid down the guidelines to rely the evidence of chance witness in the case of Jarnail Singh v. State of Punjab reported in (2009) 9 SCC 719.
Page 16 of 27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/05/2025 08:28:53 pm ) Crl.A.(MD).No.143 of 2020 “22. The evidence of a chance witness requires a very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence (Satbir v. Surat Singh [(1997) 4 SCC 192 : 1997 SCC (Cri) 538] , Harjinder Singh v. State of Punjab [(2004) 11 SCC 253 : 2004 SCC (Cri) Supp 28] , Acharaparambath Pradeepan v. State of Kerala [(2006) 13 SCC 643 : (2008) 1 SCC (Cri) 241] and Sarvesh Narain Shukla v. Daroga Singh [(2007) 13 SCC 360 : (2009) 1 SCC (Cri) 188] ).
Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded (vide Shankarlal v. State of Rajasthan [(2004) 10 SCC 632 : 2005 SCC (Cri) 579] ).” 8.2. In the chief examination, he has not even stated that whether he was available in Chellampatti. He simply stated that 'Rkhh; 2 tUlq;fSf;F Kd;G $yp Ntiy nra;tjw;fhf NghapUe;Njd;'. He has not even stated the place of Chellampatti in the chief examination and also further stated that the officer brought him to one place i.e., 'rq;fuehuazd; kw;Wk; kw;w xUehs; khiyapy; Mgprh;]; vd;id xU ,lj;jpw;F mioj;Jnrd;whh;fs; mq;F gz;ly;fs;,Ue;jJ mjpy; fQ;rh ,Ug;gjhf nrhd;dhh;fs;. mJ rk;ke;jkhf vd;dplk; ifnaOj;J thq;fpdhh;fs;. mjd;gpd;dh; xU ehs; kJiuapYs;s Page 17 of 27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/05/2025 08:28:53 pm ) Crl.A.(MD).No.143 of 2020 Mgprpw;F tu nrhy;yp vd;id tprhhpj;jhh;fs;. ehd; thf;F%yj;ij vd; ifg;gl vOjp nfhLj;Njd;. fQ;rh vLf;Fk;NghJ mq;fpUe;j egiu ghh;j;jhy; milahsk; fhl;l KbAkh vd;why; 2 tUlk; Mfptpl;ljhy; vd;dhy; milahsk; fhl;l KbahJ. me;j ,lj;jpypUe;jth; ,d;W ePjpkd;wj;jpy; M[uhfpAs;s vjphpah vd;W vdf;F njhpatpy;iy.' 8.3. From the reading of the above evidence, his presence is not free from doubt. Further, on reading of the said chief examination, he deposed against the prosecution case and the said witness has to be treated as hostile. In any circumstances, if the prosecution witness deposed against the prosecution case, it is the duty of the prosecution agency to declare him hostile and cross-examine with the material particulars. In this case, no such procedure was followed. Therefore, benefit of doubt has to be given to the appellant. That apart, in cross examination, he specifically stated that 'P.1 and P.2 vd;w nghUs; vd; Kd;dpiyapy; jahhpf;ftpy;iy S1 and S2 vd;w nghUs; vd; Kd;dpiyapy; jahhpf;ftpy;iy.' 'm.rh.M.11-y; Mtzj;jpy; Mq;fpyj;jpy; vd;d vOjg;gl;Ls;sJ vd;W njhpahJ. m.rh.M.11-y; ehd; mjpfhhpfs; nrhd;dij Ghpe;J nfhz;L ifnaOj;J nra;jjhf mjpy; thrfq;fs; ,y;iy vd;why; rhpjhd;.'
- From the above evidence, his evidence is not reliable to prove Page 18 of 27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/05/2025 08:28:53 pm ) Crl.A.(MD).No.143 of 2020 the recovery as alleged by the prosecution.
9. Discussion on the evidence of P.W.1 9.1. The circumstances show that there is no corroborative material to prove recovery. P.W.1's evidence bristles with infirmities and inherent improbabilities. Therefore, this Court hesitates to rely the evidence of P.W.1 to convict the appellant for the grave charge of possession of commercial quantity of the ganja.
9.2. P.W.1's evidence is unbelievable evidence for various reasons. It is the specific case of P.W.1 that the information was received from the informant. He disclosed about the identification marks of the person, who would receive the contraband. Admittedly, the informant did not accompany P.W.1. In the said circumstances, identification of the appellant by P.W.1 without any corroborative evidence namely, the evidence of P.W.2, this Court is unable to believe the evidence of P.W.1.
9.3. In addition to that, P.W.1's specific evidence is that the Page 19 of 27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/05/2025 08:28:53 pm ) Crl.A.(MD).No.143 of 2020 appellant dragged two bags of ganja from a bush to the main road. The said deposition is not believable on the ground that according to the prosecution, the appellant sustained grievous injuries on his shoulder. From the evidence of doctor, the appellant was admitted on the hospital as inpatient for the injuries sustained on his shoulder. In the said circumstances, allegation of dragging of bags, containing huge quantity of contraband is not believable one.
10. Further, as already observed he has not explained how the document Ex.P.1 contained the signature of superior P.W.4. P.W.4 denied the signature in Ex.P.1. Further, the mahazar was prepared in English. Whether it was explained to the accused in language known to him is another doubt. According to the evidence, it was explained through one Sankaranarayanan of the department. The accused also made a complaint against the said Sankaranarayanan alleging that he foisted the false case upon receiving the bribe from one accused Ravi @ Ravichandran, who was secured on the information furnished by the appellant. P.W.5 admitted that there was allegation against Sankaranarayanan about the receipt of Rs.5 lakhs to foist Page 20 of 27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/05/2025 08:28:53 pm ) Crl.A.(MD).No.143 of 2020 a false case. The evidence of P.W.4 is as follows:-
rq;fuehuazd; kw;Wk; kw;w mjpfhhpfs; Nrh;e;J &.5
yl;rk; ngw;W nfhz;L ngha; tof;F Nghl;Ls;sjhf mjpy;
$wg;gl;bUe;jJ. utpr;re;jpud; vd;gth; vjphpf;F vjpuhf tof;F gjpT nra;tjw;fhf gzk; &.5 yl;rk; nfhLj;jjhf vjphp jug;gpy; Fw;wr;rhl;L $wp Gfhh; mDg;gg;gl;bUe;jJ.
11. Therefore, the case of the defence that the case was falsely foisted against the appellant is established on the touchstone of preponderance of probability. The appellant was TNSTC driver and from the record, it is seen that he acted as a informant to the department. Hence, he was honored by the department and later at the instigation of the said Sankaranarayanan, who is said to have received Rs.5 lakhs from one Ravi @ Ravichandran this case has been foisted. All these circumstances, probabalise the defence of false case.
12. The said circumstances were further strengthened from the remand made before the learned Judicial Magistrate, Madurai, instead of producing him before the jurisdictional Magistrate of Thirumangalam. Page 21 of 27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/05/2025 08:28:53 pm ) Crl.A.(MD).No.143 of 2020 Normally, the said fact is not material. But, in view of the injury on the accused and also considering the other circumstances, the remand made before the learned Judicial Magistrate, Madurai instead of Thirumangalam creates a doubt over the prosecution case and strengthened the case of the accused that he was falsely roped in this case.
13. Yet another circumstance is that P.W.1 in his evidence deposed that he reached the occurrence place namely, Pannikundu at 04.30 p.m, whereas P.W.2 in Ex.P.11 and Ex.P.12 stated that NCB officers brought him and other witness Dhayanithi at 04.30 p.m, at Chellampatti and reached the occurrence place at 05.00 p.m, which is situated far away from the scene of occurrence. Therefore, it also creates doubt over the case of the prosecution. P.W.1 has also not produced go-down receipt for the contraband recovered from the appellant and also not produced the weighment receipt. In all the circumstances, this Court finds that the prosecution miserably failed to prove the charge against the appellant. Hence, the appellant is liable to be acquitted.
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14. P.W.5 did not know Tamil language and he has susbscribed his signature under Ex.P.12. One Sankaranarayanan, Sepoy of Department helped as translator. As per the evidence, there is an allegation against him with regard to the receipt of bribe. It is not the case of the officers, who have been examined on the side of the prosecution that the said fact is false. They stated that there was an enquiry in this regard. If the officers say that they conducted enquiry about the said allegation and found that same is false, then this Court will not consider the said allegation. At this stage, this Court is inclined to take the allegation against Sankaranarayanan in favour of the accused. Hence, this Court inclines to accept the defence that the prosecution has not proved the case beyond reasonable doubt.
15. The Hon'ble Supreme Court in various judgments held that the prosecution and the Investigation Agency must act in a fair manner and the prosecution has not only to prove the case beyond reasonable doubt but also make out a fool proof case for the reason that the accused is in jail without bail up to the trial. The judgment of the Hon'ble Supreme Court in Noorjahan Vs. State represented by DSP reported in AIR 2008 SC 2131, Page 23 of 27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/05/2025 08:28:53 pm ) Crl.A.(MD).No.143 of 2020 has specifically observed that the prosecution should prove the foundational facts of possession through legal evidence. The judgment of the Hon'ble Constitution Bench in the case of Mukesh Singh Vs. State (Narcotic Branch of Delhi) reported in (2020) 10 SCC 120 also reiterated the principle that in the grave nature of the offence, the greatest responsibility upon the prosecution is to prove the foundational facts.
15.1. The latest judgment of the Hon'ble Supreme Court in the case of Balwinder Singh (BINDA) vs. The Narcotic control Bureau reported in 2023 INSC 852 has reiterated the said principle:-
“Since the provisions of the NDPS Act and the punishments prescribed therein are stringent, the extent of burden of prove the foundational facts cast on the prosecution, would have to be more onerous. The view taken was that Courts would have to undertake a heightened scrutiny test and satisfy itself of “proof beyond all reasonable doubt”. Emphasis was laid on the well- settled principle of criminal jurisprudence that more serious the offence, the stricter would be the degree of proof and a higher degree of assurance would be necessary to convict an accused [Also refer: State of Punjab vs Page 24 of 27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/05/2025 08:28:53 pm ) Crl.A.(MD).No.143 of 2020 Baldev Singh, Ritesh Chakarvarti v. State of M.P., and Bhola Singh (supra)] 15.2. In this case, this Court finds that there is no legal evidence to prove the recovery of possession. Therefore, this Court is unable to concur with the finding of the learned trial Judge in convicting the appellant.
16. Accordinglay, this Criminal Appeal is allowed on the following terms :-
20.1.The judgment passed by the Principal Special Court for EC & NDPS Act Cases, Madurai, in C.C.No.99 of 2018 dated on 09.01.2020 is set aside.
20.2.The appellant is acquitted from all the
charges in C.C.No.99 of 2018 on the file of the
Principal Special Court for EC & NDPS Act Cases,
Madurai.
20.3.Fine amount if any paid by the appellant
shall be refunded to him forthwith.
20.4. Bail bond executed by the appellant
shall stand cancelled.
15.05.2025.
NCC :Yes/No
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Crl.A.(MD).No.143 of 2020
Index :Yes/No
Internet :Yes/No
dss
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Crl.A.(MD).No.143 of 2020
K.K.RAMAKRISHNAN, J.
dss
To:
1.The Principal Special Court for EC & NDPS Act Cases, Madurai.
2.The Intelligence Officer, Narcotics Control Bureau, Madurai Sub-Zone, Madurai.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4.The Section Officer, Criminal Section(Records), Madurai Bench of Madras High Court, Madurai.Crl.A.(MD).No.143 of 2020
15.05.2025 Page 27 of 27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/05/2025 08:28:53 pm )