Madras High Court
Duraipandi vs The State Rep. By on 15 October, 2025
CRL.A(MD).Nos.35, 65 and 50 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 12.09.2025
Pronounced On : 15.10.2025
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
CRL.A(MD).Nos.35, 65 and 50 of 2020
Crl.A.(MD).No.35 of 2020:
Duraipandi ... Appellant/Accused No.4
Vs.
The State rep. by
The Inspector of Police,
Othakadai Police Station,
Madurai District.
(Crime No.97/2018) ... Respondent
PRAYER: This Criminal Appeal is filed under Section 374 (2) of Cr.P.C., to set
aside the conviction and sentence imposed by the trial court by its judgment
passed in C.C.No.247 of 2018 dated 31.12.2019 on the file of the Principal
Special Court for EC & NDPS Act Cases, Madurai and acquit the appellant.
For Appellant : Mr.V. Kathirvelu
Learned Senior Advocate
For Mr.K.Prabhu
For Respondent : Mr.T. Senthil Kumar
Additional Public Prosecutor.
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CRL.A(MD).Nos.35, 65 and 50 of 2020
Crl.A.(MD).No.50 of 2020:
1.Rajeshkannan
2. Manikandan ... Appellants /Accused No.2&3
Vs.
State rep.by
The Inspector of Police,
Othakadai Police Station,
Madurai District.
In Crime No.97/2018 ... Respondent
PRAYER: This Criminal Appeal is filed under Section 374 of Cr.P.C., to call for
the records in C.C.No.247 of 2018 relating to the judgment dated 31.12.2019
passed by the Principal Special Court for EC & NDPS Act cases, Madurai and to
set aside the judgment of the conviction against the appellant/accused.
For Appellant : Mr.M.Jegadeesh Pandian
For Respondent : Mr.T. Senthil Kumar
Additional Public Prosecutor
Crl.A.(MD).No.65 of 2020:
Govindan ... Appellant/Accused No.1
Vs.
State represented by
The Inspector of Police,
Othakadai Police Station,
Madurai District.
(Crime No.97/2018) ... Respondent
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CRL.A(MD).Nos.35, 65 and 50 of 2020
PRAYER: This Criminal Appeal is filed under Section 374 (2) of Cr.P.C., to call
for the records and set aside the conviction and sentence passed by the Principal
Special Court for EC & NDPS Act cases, Madurai in C.C.No.247 of 2018 by
judgment dated 31.12.2019 and allow this appeal and acquit the
appellant/accused from the charge leveled against him.
For Appellant : Mr.Chandrasekaran
for Mr..S.SureshKumar
For Respondent : Mr.T. Senthil Kumar
Additional Public Prosecutor
COMMON JUDGMENT
The appellants/Accused in C.C.No.247 of 2018 on the file of Principal Special Court for EC & NDPS Act cases, Madurai, have filed these appeals, challenging the conviction and sentence imposed upon them on 31.12.2019, under Sections 8(c) r/w 20(b)(ii)(C) of the NDPS Act.
2. Since the appellants in all the three appeals were arrayed as accused in the same crime number, these appeals are taken up together for hearing and disposed by way of this common judgment.
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3.The brief facts of the case are as follows:
P.W.1, Circle Inspector of Umachikulam on receiving a secret information on 17.02.2018, about the appellants' and other acquitted accused's illegal possession of huge quantity of Ganja at the rear side of 'Rajakoor, Periyar Nagar Apartment, Block No.14, Door No.35', he went to the occurrence place along with P.W.2 and his team and on seeing the police officers, ten accused were trying to flee from the scene of the occurrence and six persons escaped and the appellants were nabbed by P.W.1 and his team and on enquiry, the appellants disclosed the possession of the 150 kg of ganja in the thorny bush and thereafter, P.W.1 called P.W.3, the Jurisdicational Village Administrative Officer, to act as a recovery witness and on her arrival along with her Assistant “68 brown colour packed plastic papers with 2 kg of ganja each and a gunny bag containing 14 kg of ganja were recovered i.e., totally 150 kg of ganja was recovered. Thereafter, he arrested the accused and prepared report under Section 57 of the NDPS Act and handed over the accused and the recovered contraband to the jurisdictional Inspector of Police to proceed further. P.W.4 upon receipt of the information from P.W.1 registered the case in Crime No.97 of 2018 for the offences under Sections 8(c) r/w 20(b)(ii)(C) of the NDPS Act and continued the investigation 4/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 26/11/2025 06:56:20 pm ) CRL.A(MD).Nos.35, 65 and 50 of 2020 by taking the samples in the recovered contraband, and remanded the appellants and further arrested the remaining accused namely, A5 to A10 and filed the final report after obtaining the chemical analysis report before the Principal Special Court for EC & NDPS Act cases, Madurai, and the same was taken on file in C.C.No.247 of 2018. The learned trial Judge issued summons to the accused and on their appearance, served the copies under Section 207 Cr.P.C. and framed the necessary charges and questioned the accused. All the accused pleaded not guilty and stood trial.
4. The prosecution, to prove the case have examined P.W.1 to P.W.4 and exhibited 10 documents as Ex.P.1 to Ex.P10 and produced 138 material objects as P.M.O.1 to P.M.O.138. The learned trial Judge questioned the accused under Section 313 of Cr.P.C., proceedings by putting the incriminating evidence available from the evidence of 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 appellants. On the side of the appellants, no witness was examined and no document was marked.
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5. The learned trial Judge after considering the oral and documentary evidence, acquitted the accused No.5 to 10 and convicted the appellants alone under Section 8(c) r/w 20(b)(ii)(C) of the NDPS Act r/w 34 of IPC, and sentenced the appellants to undergo 10 years Rigorous Imprisonment each and to pay a fine of Rs.1,00,000/- (Rupees One Lakh only) each in default, to undergo, 6 months Simple Imprisonment each for the offence under Sections 8(c) r/w 20(b)(ii)(C) r/w 34 IPC by the impugned judgment dated 31.12.2019. Aggrieved over the same, the appellants have preferred these appeals.
6. Thiru.M.Chandrasekaran, the learned counsel for the appellant in Crl.A. (MD)No.65 of 2020, Thiru.V.Kathirvel, the learned Senior Advocate for the appellant in Crl.A.(MD)No.35 of 2020 and Thiru.M.Jegatheesh Pandian, the learned counsel for the appellant in Crl.A.(MD)No.50 of 2020 made the following elaborate submissions:-
6.1. The prosecution has not come forward with a clear version relating to the receipt of secret information, recording of secret information and recovery of the contraband. In all stages, there were serious infirmities, and each witness contradicted with each other relating to the material particulars, and there was no 6/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 26/11/2025 06:56:20 pm ) CRL.A(MD).Nos.35, 65 and 50 of 2020 explanation relating to the said material contradictions and the infirmities, and hence, the appellants are entitled for acquittal.
6.2. In the evidence of P.W.1 and P.W.2, there are two contrary versions relating to the receipt of information. One witness deposed that they had received the secret information while they were on patrol duty. The other witness deposed that he received the information when he was in the station. The material document Ex.P.5, in which the information was reduced in writing was produced only at the time of cross-examination of the witness. The said Ex.P.5 neither formed part of the final report nor formed part of the copies served upon the accused under Section 207 Cr.P.C,. The said document is also a xerox copy.
Therefore, the said material infirmities coupled with other attending circumstances clearly shows that a false case was registered against the appellant.
6.3. There is no evidence available on record to prove the exclusive possession of the contraband with any of the convicted accused. Insofar as the recovery is concerned, there are divergent versions relating to the place of the recovery. As per the information, the contraband was allegedly possessed by the 7/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 26/11/2025 06:56:20 pm ) CRL.A(MD).Nos.35, 65 and 50 of 2020 convicted appellants in the apartment, namely, 'Rajakoor, Periyar Nagar Apartment, Block No.14, Door No.35'. But the contraband was stated to have been found in a thorny bush at that place. There was no material to show that the said two places are the same place or the thorny bush was situated near the apartment. The same is significant since, A4 was the watchman of the apartment and in his custody, police out booth book was available. His specific case is that he was falsely roped in for the reason that he had not given mamool(bribe).
6.4. Apart from that, even P.W.1 & P.W.2 never deposed that the appellants were found in exclusive possession of the contraband. P.W.3, the Village Administrative Officer, Kadachanenthal, reached the place of occurrence only after the recovery. Therefore, recovery from the convicted appellants is also not proved. In this case, the joint consent letter was obtained, which is not legally correct. The confession was recorded from A1 alone and also after the alleged recovery of the contraband in the thorny bush, no sketch or observation mahazer was prepared. P.W.1 and P.W.2 have not even identified the accused in the Court. The property was recovered on 17.02.2018, and the same was produced before the Court only on 19.03.2018. According to the witnesses, the occurrence took place in the apartment. In those circumstances, no independent witness was 8/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 26/11/2025 06:56:20 pm ) CRL.A(MD).Nos.35, 65 and 50 of 2020 examined, and the same would create suspicion in the process of recovery. According to the appellants, no sample was taken at the occurrence place. According to the information, 150 kg of ganja was in possession. But more than 3.450 kg of ganja was missing in Ex.P.8 and also in Form-91 submitted before the Court. There was no explanation for missing of a huge quantity of ganja. According to the prosecution evidence, the Deputy Superintendent of Police also was part of the said recovery proceeding. In the said circumstances, there was no compliance of either Section 57 or 52 of the NDPS Act. The sample was taken at some other police station for the reason that raid was conducted by some other police officers of different jurisdiction. In the said circumstances, there is illegality in not taking the sample in the occurrence place. Even mahazer was not prepared. From the records, it is not clear how much quantity of ganja was available in the gunny bag, in addition to the huge quantity of 136 kg of ganja.
6.5. It is the specific case of P.W.3, the independent witness namely, the Village Administrative Officer, Kadachanenthal, that she was unable to identify the accused before the Court. Therefore, in the absence of the proper identification of the convicted appellants during the course of the chief examination of P.W.1, P.W.2 and P.W.3, the presence of the accused in the scene 9/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 26/11/2025 06:56:20 pm ) CRL.A(MD).Nos.35, 65 and 50 of 2020 of occurrence is not proved beyond reasonable doubt.
6.6. The learned counsel for the appellants further submitted that even Ex.P.3 is taken as true, Ex.P.5 automatically falls to the ground. The Officers have not followed the mandatory procedure stated in the notification No.1/1989 to draw the samples. There are lot of contradictions relating to the date and time of the receipt of information and recovery of contraband. In all circumstances, the prosecution has not proved the case against the appellants. Therefore, he seeks acquittal for the appellants.
7. Submission of the learned Additional Public Prosecutor :-
The learned Additional Public Prosecutor submitted that owing to long passage of time from the date of the occurrence to that of examination of witnesses, i.e., after 1 ½ years, some minor contradictions and immaterial infirmities tend to occur in the prosecution case, and it may not be a ground to disbelieve the evidence of P.W.1 to P.W.3 to prove the recovery from the convicted appellants.
10/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 26/11/2025 06:56:20 pm ) CRL.A(MD).Nos.35, 65 and 50 of 2020 7.1. P.W.3 only deposed that she is unable to identify the accused. That can not be interpreted to mean that she is not aware of the accused and hence, the evidence of P.W.3 is clearly admissible under Section 6 of the Evidence Act because after the occurrence, she found the accused along with the contraband.
Hence, her evidence is admissible as per the principle of res gestae.
7.2. Further he submitted that as far as the scene of occurrence is concerned, there is clear evidence to show that it was recovered from the thorny bush. In this type of the heinous offence, some mistake on the part of the Investigating Agency would occur while preparing the observation mahazer and it is not a ground to disbelieve the evidence of P.W.1 to P.W.3. The information was reduced in writing under Section 42 of the NDPS Act and merely it was marked at the time of examination of the witness and it is not a ground to doubt the veracity of the case. The document contained the clear information about the possession of the contraband which is corroborated by proving the place of recovery and the recovered contraband. Therefore, the contradiction in the documents is not a ground to disbelieve the prosecution evidence relating to the recovery. Once recovery is proved, as per Section 35 and 54 of the NDPS Act, the culpability on the part of convicted, appellants can be presumed and they are 11/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 26/11/2025 06:56:20 pm ) CRL.A(MD).Nos.35, 65 and 50 of 2020 bound to explain the incriminating circumstances available against them. There was no explanation in this regard and hence, in all aspects, the prosecution clearly proved the case beyond reasonable doubt. When the evidence of P.W.1 to P.W.3 is cogent and trustworthy relating to the recovery of contraband, the other minor contradictions and infirmities are not a ground to disbelieve the case of the recovery. It is true that due to long lapse of time from the date of the occurrence, witness might have lost their memory and they cannot be expected to depose with a photographic memory and hence, he prayed to confirm the conviction and sentence imposed against the appellants.
7.3. He also submitted that it is true that the charge was framed under Section 8(c) r/w 20(b)(ii)(C) of the NDPS Act r/w 34 of the IPC. Since some of the accused (A5 to A10) had absconded from the scene of the occurrence and no recovery was made, the learned Trial Judge acquitted A5 to A10 and convicted the appellants only under Section 8(c) r/w 20(b)(ii)(C) of the NDPS Act r/w 34 of the IPC. Therefore, the learned trial Judge rightly convicted the appellants in accordance with the law and hence, he prayed for dismissal of the appeal. 12/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 26/11/2025 06:56:20 pm ) CRL.A(MD).Nos.35, 65 and 50 of 2020
8. This Court considered the rival submissions made by the learned counsel appearing for the appellants and the leanred Additional Public Prosecutor appearing for the respondent and perused the materials available on records and the impugned judgment and the precedents relied upon by the appellants.
9. The questions arise for consideration of this Court are as follows:
(i) Whether the learned trial Judge is correct in convicting the appellants after acquitting A5 to A10?
(ii) Whether the learned trial Judge is correct in convicting the appellants under Section 8(c) r/w 20(b)(ii)(C) of the NDPS Act r/w 34 of the IPC?
10.Non-compliance of Section 42 of the NDPS Act:
10.1. As per the Hon'ble Constitution Bench judgment of the Supreme Court in the case of Karnail Singh -vs- State of Haryana reported in 2009 (8) SCC 539, the empowered officer under Section 42(1) is obliged to reduce in writing the information received by him after making entry in the case diary.
Thereafter, he would send the same to the immediate superior. Further, the Hon'ble Supreme Court has held that the officer on receiving the information [of 13/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 26/11/2025 06:56:20 pm ) CRL.A(MD).Nos.35, 65 and 50 of 2020 the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate superior officer, before proceeding to take action in terms of clauses
(a) to (d) of Section 42(1). The said compliance with the requirements of Sections 42(1) and 42(2) with regard to writing down the information received sending a copy thereof, to the superior officer, should normally precede the entry, search and seizure by the officer. If the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the superior officer, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the superior officer at all, then also it will be a clear violation of Section 42 of the Act. The Hon'ble Supreme Court has held that the said requirement is mandatory considering the harsh punishment and presumption clause.
10.2. According to P.W.1, he received the secret information on 17.02.2018. Even in his chief examination,
(i) he never deposed about “time of the receipt of the information” and 14/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 26/11/2025 06:56:20 pm ) CRL.A(MD).Nos.35, 65 and 50 of 2020 when he made entry in the case diary and when the same was reduced in writing.
(ii) he never deposed that he had informed to his immediate superior officer;
(iii) he never deposed that his immediate superior upon receipt of his written information, directed him to proceed to the occurrence place to search and nab the accused;
(iv) in his cross examination, he also admitted that in none of the documents, his immediate superior had signed.
(v) he also admitted that he had not received the information at the time of the patrol and he and P.W.2 specifically deposed about the receipt of the information when they were in the police station.
10.3.From the above reading of the evidence of P.W.1, it is clear that there was total non-compliance of the requirement of Section 42 of the NDPS Act. Firstly, he has not stated the time of the receipt of the information and also he has not stated about the recording of information in the case diary and further he has not stated that he reduced the information in writing and sent a copy thereof to the superior officer before proceeding further as per Section 42 of the NDPS Act. From the perusal of the oral and documentary evidence, this Court is unable to 15/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 26/11/2025 06:56:20 pm ) CRL.A(MD).Nos.35, 65 and 50 of 2020 find any material for compliance of the requirement of Section 42 of the NDPS Act. Even the superior officer was not examined to prove the compliance of the Section 42. Curiously Ex.P5, the xerox copy was introduced at the belated stage of the trial to show the compliance of Section 42. The xerox copy of the said document was objected by the accused side on the ground that original was not produced and the said original does not form part of neither the final report nor form part of the copies supplied under section 207 of Cr.PC. Even in the said inadmissible document, there is no whisper about the compliance of the Section
42. There was no signature of the superior officer and there was no material content informing about the contents of the information. This Court also perused the entire records and also CD file. But this court is unable to find any original. This Court also called the police officers and questioned about the missing of the original in the presence of the learned Additional Public Prosecutor. They were unable to submit any explanation regarding the same. P.W.4, the Investigating Officer also admitted that the immediate superior officer has never signed in any document. Further, he never recovered any document from P.W.1 or from the police station to show the recording of the information in the case diary. That apart, in the so-called inadmissible Ex.P5, there is no reference about the endorsement made by the immediate superior about the receipt of the 16/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 26/11/2025 06:56:20 pm ) CRL.A(MD).Nos.35, 65 and 50 of 2020 information. In all cases, the immediate superior upon receipt of the information usually would write in hand that “information received and proceed, search and seize”. But no such endorsement has been made by the superior officer. But there is a strange endorsement which is as follows:
“Inspector Kalaikathiravan raid conducted” 10.4.In view of the above discussion, this Court inclines to accept the submission of the learned counsel for the appellants that there was total non-
compliance of the mandate of Section 42 of the NDPS Act and also Ex.P5 is a concocted xerox document and also the same is not admissible and it can never be used to prove the compliance of the mandate of Section 42 of the NDPS Act. Therefore, the said non-compliance of the mandate of Section 42 of the NDPS Act has caused a serious dent in the basic fabric of the prosecution case and hence, the appellants are entitled to accquittal.
11.Recovery:
11.1.To prove the recovery of the huge quantity of ganja, the prosecution examined P.W.1, P.W.2 apart from P.W.3 an independent official witness. P.W.3 independent official witness namely jurisdictional Village Administrative Officer 17/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 26/11/2025 06:56:20 pm ) CRL.A(MD).Nos.35, 65 and 50 of 2020 specifically deposed that she was unable to identify the accused.
ehd; rk;gt ,lj;jpy; 4 ngh;fs; ahh; vd;W jw;nghJ ePjpkd;wj;jpy; M$uhfpa[s;s 8 vjphpfspy;
ahh; vd;W milahsk; fhl;l ,ayhJ/ ehd;
rk;gt ,lj;jpy; ,Ue;jpUe;jhy; milahsk;
fhl;l Koa[k; vd;Wk; ehd; ,y;yhjjhy;
milahsk; fhl;l Koatpy;iy vd;why;
rhpay;y.”
11.2.Even in her chief examination, she stated that only after nabbing the accused, she was summoned to appear in the occurrence place. And she never identified the 4 appellants in her chief examination. It is the duty of the witnesses to specifically depose about the identity of accused during their examination i.e., each witness should depose in the following line:
M$h; vjphia bjhpa[k;. rk;gtnjjpapy; rk;gt ,lj;jpy; M$h; vjphpfsplkpUe;J fhty; Jiwapdh;
fQ;rhit ifg;gw;wpdh;.
11.3.There is no such evidence before the Court below and also she specifically admitted that she is unable to identify the appellants. Therefore, the evidence of P.W.3 to prove the recovery deserves to be rejected. Then remaining police witnesses P.W.1 and P.W.2 contradict with each other about the material 18/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 26/11/2025 06:56:20 pm ) CRL.A(MD).Nos.35, 65 and 50 of 2020 particulars of the recovery. P.W.1 speaks about the recovery of 150 kg ganja i.e., “68 brown colour packed plastic papers with 2 kg of ganja each and a gunny bag containing 14 kg of ganja was recovered”. P.W.1 admitted that he never took the sample from the each cover and gunny bag. He deposed that he measured and submitted the report and produced the same along with the accused at the Othakkadai Police Station. According to P.W.1, the occurrence place was not within the said jurisdictional limit and it is within the jurisdiction of P.W.4 police officer. Therefore, P.W.1 without taking sample produced the seized contraband before P.W.4 along with the accused. Form 91 was not marked before the Trial Court to prove the production of the contraband. Therefore, this Court called for the CD file. In the CD file, a xerox copy of the Form 91 was available with manipulation in the quantity of ganja. In the xerox copy of Form 91, the weight of the recovered contraband was shown as 146.500 kg. There was a missing quantity of approximately 3.5 kg of ganja. The recovered contraband was not produced along with the accused on the date of remand. In the Form 91, there was over writing about the contraband i.e., 10.550 kg. There was no explanation about the missing of the huge quantity of the recovered ganja. P.W.1 deposed that he found the accused with contraband in the thorny bush situated near the 'Rajakoor, Periyar Nagar Apartment, Block No.14, Door No.35' but P.W.2 gave a 19/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 26/11/2025 06:56:20 pm ) CRL.A(MD).Nos.35, 65 and 50 of 2020 different version about the place of occurrence as behind the 'Rajakoor, Periyar Nagar Apartment, Block No.14, Door No.35'. P.W.1 admitted that he never prepared either the observation mahazer or sketch to show the place of recovery.
In the recovery mahazer, there was no signature of P.W.2. P.W.2 admitted that he never wrote the recovery mahazer and also he never signed any documents. P.W. 2 admitted that his signature is not found in the recovery mahazer. There was no mentioning of the absconding of the remaining accused in the athatchi and also he never obtained the confession statement. It is the specific case of P.W.1 that when his team reached 'Rajakoor, Periyar Nagar Apartment, Block No.14, Door No.35', 10 accused ran away in different directions from the place of the occurrence and his team nabbed only the appellants. The appellants disclosed about 68 brown colour packed plastic papers with 2 kg of ganja each and a gunny bag containing 14 kg of ganja in the thorny bush other than place mentioned in Ex.P.5 and they disclosed about the names of the absconding accused. And thereafter, Kadachanenthal Village Administrative Officer P.W.3 was called and recovery was made under Ex.P2. In the said circumstance, evidence of P.W.3 about the recovery is not admissible under Section 27 of the Evidence Act. Before her arrival, the accused disclosed about the place where the contraband is located and the quantity of contraband to P.W.1. P.W.2 also 20/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 26/11/2025 06:56:20 pm ) CRL.A(MD).Nos.35, 65 and 50 of 2020 affirmed the arrival of P.W.3 after half an hour from nabbing of the accused with contraband.
11.4.P.W.2 deposed that no independent witness was available at the occurrence place. But P.W.1 deposed that the independent witnesses were available in the apartment and they were not willing to be witness for the recovery. This material contradiction also affects the credence of P.W.2's evidence. It was an apartment where number of occupants were available but P.W.2 deposed that nobody was available. In view of the above various infirmities about the place of the recovery between the evidence of P.W.1 and P.W.2 and about the weight of the recovered contraband and arrival of P.W.3 after the nabbing of the accused and failure to produce the contraband on the date of the remand and non explanation about the missing quantity of approximately 3.5 kg of ganja, presence of P.W.1 in the territory of the P.W.4's jurisdiction and non-compliance of Section 42 creates doubt over the recovery and hence, this Court finds merit in the contention of the appellants that recovery was not proved beyond the reasonable doubt.
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12.Discussion about the escape of 6 accused from the place of occurrence:
P.W.1 deposed as follows:
rk;gt ,lj;jpw;F 2 muR ehd;F rf;fu thfdj;jpy; brd;nwhk;/ 2 thfdq;;fspYk; nrh;j;J bkhj;jk; Rkhh; 15> 16 ngh;fs;
brd;nwhk;.” 12.1.From the above, it is the case of the prosecution that 16 police personnel in two police van went to the scene of occurrence to nab the accused along with contraband. In the said circumstances, this Court has its own doubt about the evidence of P.W.1 and P.W.2 that remaining accused who were present escaped from the place of occurrence. More particularly, there was no evidence to show that they were in hot pursuit to trace the absconding accused. Therefore, the said circumstances create doubt over the evidence of P.W.1 and P.W.2 to believe the recovery.
13.Contradiction about the quantity of the contraband:
According to P.W.1, he recovered 150 kg of ganja under the aththatchi Ex.P2 i.e., 68 brown colour packed plastic papers with 2 kg of ganja each and a 22/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 26/11/2025 06:56:20 pm ) CRL.A(MD).Nos.35, 65 and 50 of 2020 gunny bag containing 14 kg of ganja was recovered. But in the Ex.P8, it is stated that only 10.550 kg of ganja was recovered from the gunny bag. Further, P.W4 deposed as follows:
mj;jhl;rpapy; 2 fpnyh tPjk; 68 bghl;lyq;;fs; vd;W Fwpg;gplg;gl;Ls;sJ. rhf;fpy; ,Ue;j fQ;;rhtpd; vil Fwpg;gpl;L Twg;gltpy;iy vd;why; rhpjhd;.
ehd; khjphp vLj;jJ rk;ke;jkhf kf$h; jahh;
bra;atpy;iy. gotk; 95y; bts;is bgapz;lhy;
jpUj;jKk; kw;Wk; ,ilbrWfyhf thh;j;ij
vHjg;gl;Ls;sJ vd;why; rhpjhd;.
tHf;F gjpt[ bra;j gpd;dh; ehd; khjphp vLj;njd;.
khjphp bghl;lyq;fspd; kPJ xl;lg;gl; jhspy;
ifg;gw;wg;gl;l ,lk;> neuk;> njjp> khjphp
vLf;fg;gl; ,lk; Fwpg;gpltpy;iy vd;why; rhpjhd;. khjphp bghl;lyq;fs; kw;Wk; kPjpa[s;s fQ;rh bghl;lyq;fspd; kPJ vd;id jtpu ntW ahUk; ifbaGj;J bra;atpy;iy vd;why; rhpjhd;. khjphp bghl;lyq;fs; kw;Wk; kPjpa[s;s fQ;rh bghl;lyq;fspd; kPJ vjphpfspd;
ifbaGj;J ,y;iy vd;why; rhpjhd;.
14.Non drawing of the samples in the occurrence place:
P.W.1 admitted that he has not taken any samples from the recovered contraband in the occurrence place. It is the duty of the searching officer to draw the samples as per the Government notification 1/1989 in the occurrence place to prove the recovery in the presence of the witnesses. The Hon'ble Supreme Court in the case of Noor Aga Vs. State of Punjab and Another in (2008) 16 SCC 417 23/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 26/11/2025 06:56:20 pm ) CRL.A(MD).Nos.35, 65 and 50 of 2020 has made detailed discussion about the said compliance. The said isolated circumstance would not normally be taken as a material circumstance but in this case there was a missing of huge quantity of recovered ganja and the P.W.1 allegedly made search in the jurisdiction of P.W.4 without complying the mandate of Section 42 of the NDPS Act. And none of the prosecution witness deposed about the illegal possession of contraband by the appellants. Their evidence is only to the extent that appellants disclosed about the place of the contraband and the evidence of P.W.3, the Village Administrative Officer and P.W.1 is that the place of recovery is a thorny bush and public can have access. In view of the above circumstances, it is the duty of the P.W.1 to take samples and send the remaining contraband with proper seal to the jurisdictional Court. Without doing the same, strangely he is allegedly to have handed over the accused along with the recovered contraband in the custody of P.W.4. P.W.4 is not the authority to receive the accused along with contraband and he is not the empowered officer under Section 42 of the NDPS Act. Therefore, non-taking of the samples in the occurrence place creates a dent in the recovery of the contraband on disclosure made by the appellants.
15. Proof of taking of sample by P.W.4 is also doubtful:-
According to P.W.1, without taking sample at the occurrence place, he 24/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 26/11/2025 06:56:20 pm ) CRL.A(MD).Nos.35, 65 and 50 of 2020 handed over the entire contraband to P.W.4 in his Police Station. P.W.4 is said to have taken the sample. He deposed that he never mentioned about date, time and place of drawing the sample on the label. The sample label, neither contains the signature of the accused nor any other witnesses. The signature of the accused was also not obtained on the label of remaining contraband. To prove the presence of the accused, it is mandatory to obtain the signature of the accused and witnesses on the sample label. In this case, P.W.1 has not drawn the sample in the occurrence place as per the Government Notification No.1/89 and also P.W.4 has not taken the sample with the signature of accused and the witnesses. Therefore, there is doubt over taking of the sample.
16. The delay in producing the contraband and sending the sample to the lab:-
P.W4 deposed that, ,e;ePjpkd;wj;jpy; brhj;Jf;fis 19.03.2018-k; njjp xg;gilf;fg;l;Ls;sJ. midj;J khjhpapd; epfu vil 50 fpuhkw;F Fiwthf gFg;gha;t[ mwpf;ifapy; Fwpg;g;plg;gs;sJ vd;why; rhpjhd;. ePjpkd;wj;jpy; 19.03.2018k; njjp bgw;W kWehs; gFg;gha;thsh; mYtyfj;jpy khjphp xg;gilf;fg;l;Ls;sJ vd;why; rhpjhd;. ,ilg;gl;l neuj;jpy;
khjphp epiya ghJfhg;gpy; ,Ue;jJ vd;W Mtzq;fspy;
Fwpgplgltpy;iy vd;why; rhpjhd;.
25/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 26/11/2025 06:56:20 pm ) CRL.A(MD).Nos.35, 65 and 50 of 2020 16.1.From the reading of the evidence, it can be understood that the contraband was produced before the Special Court only on 19.03.2018. There was no explanation on the side of the prosecution for such delay in producing the contraband before the Special Court. The sample was produced before the lab on 20.03.2018 and for such a delay also there was no explanation for such delay. Further, there was no evidence adduced about the safe custody of the said contraband and sample. The sample label and the remaining contraband label does not contain the date, time and signature of the witnesses and accused. All these infirmities creates doubt over taking of sample and proper sending of the sample.
17. Proof of Exclusive Possession of the contraband with the appellants:-
P.W.1, P.W.2 never deposed about the exclusive possession of the contraband by the appellant. Even in the chief examination, P.W.1 never deposed about the exclusive possession of the contraband by the appellant. He only deposed that A1 to A4 namely, the appellants diclosed about the presence of huge quantity of contraband in a thorny bush. It is not the case of P.W.1 that all 26/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 26/11/2025 06:56:20 pm ) CRL.A(MD).Nos.35, 65 and 50 of 2020 the accused including the absconding accused handled the contraband and on seeing the police party, they escaped from the scene of occurrence. P.W.1 deposed that he never recorded confession. None of the appellants made any disclosure statement and the prosecution neither proved the recording of disclosure statement nor proved the confession. P.W.4 also deposed that he has not recorded any confession from the accused. Therefore, the exclusive possession of ganja by the appellants has not been proved.
18.Other infirmities in the prosecution case:
18.1. When P.W.3 deposed that she was unable to identify the appellants, it is the duty of the prosecution to prove the presence of the appellants in the scence of occurrence. When P.W.3 the Village Administrative Officer, failed to identify the appellants the prosecution ought to have examined the village assistant of P.W.3. More particularly, he has signed in the aththatchi and other documents. The said non-examination of the Asistant of P.W.3 creates serious doubt over the prosecution case with regard to the presence of the appellants in the scene of the occurrence.
18.2. There are two versions relating to the receipt of information. P.W.1 in cross examination deposed that when he was on patrol duty, the Deputy 27/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 26/11/2025 06:56:20 pm ) CRL.A(MD).Nos.35, 65 and 50 of 2020 Superindentdent of Police, the immediate superior to P.W.1 received the secret information and directed P.W.1 to conduct the raid. P.W.1 in his chief examination deposed that he received the secret information and proceeded towards the occurrence place. He informed to the superior officer. P.W.2 also deposed that the Deputy Superintendent of Police orally instructed to conduct the raid by accompanying with P.W.1. To substantiate the same, neither the Deputy Superintendent of Police was examined nor any document was marked.
Therefore, there are two version relating to the alleged receipt of the information and hence, benefit of doubt has to be given to the appellants.
19. Non -complaince of Section 57 :-
19.1. Both P.W.1 and P.W.4 deposed about the compliance of Section 57 of the Act. P.W.4 admitted that he never sent the report. ehd; gphpt[ 57d; fPH;
cah; mjpfhhpfSf;F mwpf;if mDg;gtpy;iy. The Hon'ble Supreme Court has held that non-complaince of Section 57 is not a sole circumstance to disbelieve the prosecution case, but considering the other circumstances, the non-compliance is a material one in this case to disbelieve the case of the prosecution. In this case, the said non-compliance is material in view of the above infirmities in the prosecution case relating to the recovery of the 28/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 26/11/2025 06:56:20 pm ) CRL.A(MD).Nos.35, 65 and 50 of 2020 contraband, weight of the contraband, non-compliance of Section 42 etc., P.W.1 deposed that he sent the report to the Deputy Superintendent of Police under Ex.P4 but there was no such endorsement made by the superior for having received the same. Apart from that the Deputy Superintendent of Police has not been examined to prove the receipt of the report under Section 57.
19.2. The contraband was not produced on the date of the remand i.e.,on 18.02.2018. The contraband was produced before the Special Court only on 19.03.2018 i.e., after one month from the date of the remand. There was no explanation on the side of the prosecution for the said inordinate delay. Further, no evidence was adduced about the safe custody of contraband during the interregnum period of one month and no document was produced as admitted by P.W.4.
19.3. P.W.4 deposed that he has taken 69 samples 50 grams each at his police station after receipt of the whole lot of contraband from P.W.1. But in the report, he stated that even after taking the samples of 50 grams each, the remaining contraband also weighed 150kg. After taking the huge samples, the weight of remaining contraband ought to have substantially come down. This 29/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 26/11/2025 06:56:20 pm ) CRL.A(MD).Nos.35, 65 and 50 of 2020 also creates doubt over the prosecution case.
20. From the above discussion, this Court holds that the prosecution miserably failed to prove the case against the appellants under Section 8(c) r/w 20(b)(ii)(C) of the NDPS Act r/w 34 of the IPC beyond reasonable doubt and hence, this Court is inclined to set aside the conviction and sentence against the appellants imposed by the Principal Special Court for EC & NDPS Act Cases, Madurai, in C.C.No.247 of 2018, dated 31.12.2019.
21. P.W.1 Thiru Kalaikathiravan and P.W.4 Thiru Ravichandran have committed many intentional lapses as discussed in various paragraphs of this judgment in recording the information under Section 42, in drawing the samples on the occurrence place, in producing the contraband belatedly in the Court, allowing the number of accused to escape from the scene of occurrence, failing to account for missing more than 3 ½ kgs of recovered ganja which resulted into the acquittal in this case. The Hon'ble Supreme Court in the following case has held that while acquitting the accused, it is open to any court to issue a direction to the High Level officer to take appropriate action against the erring officers in conducting the invetigation which resulted into acquittal by following the 30/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 26/11/2025 06:56:20 pm ) CRL.A(MD).Nos.35, 65 and 50 of 2020 principle of Natural Justice:
21.1. In the case of State of Gujarat Vs. Kishanbhai reported in (2014) 5 SCC 108 “23. ... Each erring officer must suffer the consequences of his lapse, by appropriate departmental action, whenever called for. Taking into consideration the seriousness of the matter, the official concerned may be withdrawn from investigative responsibilities, permanently or temporarily, depending purely on his culpability. We also feel compelled to require the adoption of some indispensable measures, which may reduce the malady suffered by parties on both sides of criminal litigation. Accordingly, we direct the Home Department of every State Government to formulate a procedure for taking action against all erring investigating/prosecuting officials/officers. All such erring officials/officers identified, as responsible for failure of a prosecution case, on account of sheer negligence or because of culpable lapses, must suffer departmental action. The above mechanism formulated would infuse seriousness in the performance of investigating and prosecuting duties, and would ensure that investigation and prosecution are purposeful and decisive. The instant direction shall also be given effect to within 6 months.
31/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 26/11/2025 06:56:20 pm ) CRL.A(MD).Nos.35, 65 and 50 of 2020
24. A copy of the instant judgment shall be transmitted by the Registry of this Court, to the Home Secretaries of all State Governments and Union Territories, within one week. All the Home Secretaries concerned, shall ensure compliance with the directions recorded above. The records of consideration, in compliance with the above direction, shall be maintained.” 21.2. In the case of Bharati Tamang Vs. Union of India reported in (2013) 15 SCC 578 “33. ...when deficiency in investigation or prosecution is visible or can be perceived by lifting the veil that thereby tried to hide the realities, the court should deal with the same with the iron hand appropriately within the framework of law. 21.3. In the case of Dayal Singh Vs. State of Uttaranchal reported in (2012) 8 SCC 263 “47.5. We hold, declare and direct that it shall be appropriate exercise of jurisdiction as well as ensuring just and fair investigation and trial that courts return a specific finding in such cases, upon recording of reasons as to deliberate dereliction of duty, designedly defective investigation, intentional acts of omission and commission prejudicial to the case of the prosecution, in breach of 32/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 26/11/2025 06:56:20 pm ) CRL.A(MD).Nos.35, 65 and 50 of 2020 professional standards and investigative requirements of law, during the course of the investigation by the investigating agency, expert witnesses and even the witnesses cited by the prosecution. Further, the courts would be fully justified in directing the disciplinary authorities to take appropriate disciplinary or other action in accordance with law, whether such officer, expert or employee witness, is in service or has since retired.”
22.In view of the above Law laid down by the Hon'ble Supreme Court, this Court is inclined to issue direction to the Director General of Police, Tamil Nadu to take appropriate action against the officers namely P.W. 1/Thiru.Kalaikathiravan (then Inspector of Police, Omatchikulam Police Station) and P.W.4/Thiru.Ravichandran (then Inspector of Police, Othakadai) by coducting enquiry after giving adequate opportunity within a period of two months from the date of receipt of copy of this order and submit the action taken report before this Court on 18.03.2026.
23.Accordingly, these Criminal Appeals are allowed and the conviction and sentence against the appellants imposed by the Principal Special Court for EC & NDPS Act Cases, Madurai, in C.C.No.247 of 2018, dated 31.12.2019 is set 33/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 26/11/2025 06:56:20 pm ) CRL.A(MD).Nos.35, 65 and 50 of 2020 aside. Bail bond if any executed by them, shall stand cancelled. Fine amount if any paid by them shall be refunded forthwith.
24. List this case on 18.03.2026 under the caption for “reporting compliance”.
15.10.2025
NCC :Yes/No
Index :Yes/No
Internet :Yes/No
dss/sbn
To
1.The Additional District Judge/Presiding Officer, Principal Special Court for EC & NDPS Act Cases, Madurai .
2.The Inspector of Police, Othakadai Police Station, Madurai District.
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.
34/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 26/11/2025 06:56:20 pm ) CRL.A(MD).Nos.35, 65 and 50 of 2020 K.K.RAMAKRISHNAN, J., dss/sbn Crl.A(MD)Nos.35, 50 & 65 of 2020 15.10.2025 35/35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 26/11/2025 06:56:20 pm )