Madras High Court
Eswaran vs The State Rep By Its on 15 October, 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 12.09.2025
Pronounced On : 15.10.2025
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
Crl.A.(MD).No.472 of 2023
and
Crl.MP(MD)No.9059 of 2023
Eswaran ... Appellant/Accused No.2
Vs.
The State rep by its,
Inspector of Police,
Melur Police Station,
Madurai City.
(In Crime No.2236 of 2020) ... Respondent/Complainant
PRAYER : Criminal Appeal is filed under Section 374(2) of the
Criminal Procedure Code, to call for the entire records in C.C.No.296
of 2021, dated 21.04.2023 on the file of the I Additional Special Court
for NDPS Act Cases, Madurai, and set aside the judgement of the
conviction on the appellant/accused.
For Appellants : Mr.M.Chandra Sekaran
for Mr.A.Balaji
For Respondent : Mr.R.Meenakshi Sundaram
Additional Public Prosecutor
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JUDGMENT
The appellant/A2 in C.C.No.296 of 2021 on the file of I
Additional Special Court for NDPS Act Cases, Madurai, has filed this
appeal, challenging the judgment of conviction and sentence imposed
against him on 21.04.2023, whereby, he was convicted for the offence
under Sections 8(c) r/w 20(b)(ii)(C) and 25 of the NDPS Act for the
alleged illegal possession and transportation of 102 kg of ganja.
2.1. The brief facts of the case is as follows:
When P.W.2 was working as Sub-Inspector of Police, Melur
Police Station, MAdurai, on 30.12.2020, at 06.45 pm, he received a
secret information through telephone from his informant about the
illegal transportation of ganja in the Toyota Car bearing
Reg.No.TN-09-CS-5062 near Katthapatti Melur Taluk, Madurai
District. He recorded the said information in the General Diary and
reduced it in writting under Ex.P.9 and informed the same to his
Immediate Superior. Thereafter, P.W.2 and other police officers went
to the spot with necessary equipment and were on surveillance. At
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that time, at 07.55 p.m, P.W.2 found the said car coming and the
informant identified the accused and the car and thereafter, left the
place of occurrence. They intercepted the vehicle and introduced
themselves as police 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 search by the officer himself and hence, P.W.2 conducted a
search and found the presence of 102 kg of ganja in the back seat of
the car and made weighment of entire contraband and took the
sample of S1 and S2 and properly sealed the same. He also properly
sealed the remaining contraband. Thereafter, he arrested the
appellant. The appellant also gave a confession and the same was
recorded by P.W.2. P.W.2 brought the accused to the police station
along with the entire contraband and sample and registered a case in
Crime No.2236 of 2020 for the offence under Sections 8(c) r/w 20(b)(ii)
(C), 25 and 29(1) of the NDPS Act and prepared a detailed report
under Section 57 of NDPS Act. Following the same, P.W.2 handed
over the custody of the accused to P.W.3 along with the contraband,
sample and report under Section 57 of the Act. P.W.3 produced the
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accused before the learned Judicial Magistrate along with the
recovered contraband and samples taken from the said contraband
and made a request to remand him. After completing all the
formalities, the learned Judicial Magistrate remanded the appellant in
judicial custody. Thereafter, P.W.3 conducted the investigation and
filed the final report before the I Additional Special Court for NDPS
Act Cases, Madurai, and the same was taken on file in C.C.No.296 of
2021.
2.2. The learned trial Judge issued summons to the accused and
on their appearance, served the copies under Section 207 Cr.P.C. and
framed the necessary charges and questioned the accused. The
accused pleaded not guilty and stood trial.
2.3. The prosecution, to prove the case examined P.W.1 to P.W.3
and exhibited 18 documents as Ex.P.1 to Ex.P18 and produced 5
material objects as M.O.1 to M.O.5. 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
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accused. 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 appellants for the offence under
Sections 8(c) r/w 20(b)(ii)(C) and 25 of the NDPS Act, and sentenced
him to undergo 10 years Rigorous Imprisonment and to pay a fine of
Rs.1,00,000/- (Rupees One Lakh only) in default, to undergo, 12
months Rigorous Imprisonment for the offence under Sections 8(c)
r/w 20(b)(ii)(C) of the NDPS Act.
3. Challenging the said conviction and sentence imposed by the
learned trial Judge, present appeal has been filed.
4. The learned counsel for the appellant made the following
submissions :-
4.1. According to P.W.2, he received the secret information
through telephone on 30.12.2020 at 18.45 hours. The same was
reduced in writing under Ex.P.9 and he immediately sent the same to
P.W.3. This Court perused the evidence of P.W.3. P.W.3 also affirmed
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the request made by P.W.2 and on receipt of information, he
acknowledged the same and granted permission to conduct search
and submit a report before the learned Judicial Magistrate as per law.
4.2. The learned trial Judge has committed error in holding that
compliance under Section 42 of the Act has no application to the
present case. According to the prosecution, P.W.2 received the secret
information through telephone communication and the same was
recorded under Ex.P.9 and sent the same to the immediate superior.
The immediate superior also gave permission to conduct raid and
thereafter, they proceeded towards the occurrence place. But, the
learned trial Judge has held that Section 42 of the Act has no
application to the present case. Therefore, there was no compliance of
Section 42 of the Act. Hence, he seeks acquittal for the appellant. He
strongly relied the judgment of the Hon’ble Constitution Bench of the
Supreme Court in the case of Karnail Singh v. State of Haryana,
reported in (2009) 8 SCC 539.
4.3. There were inconsistencies and the material contradictions
between P.W.1 and P.W.2's evidence relating to the recovery of
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contraband. Therefore, benefit of doubt has to be given to the
appellant.
4.4. In Ex.P.9 there is no mentioning about the name of the
appellant. Then how P.W.2 found out the appellant and conducted
search in the car was not properly explained. Hence, benefit of doubt
has to be given to the accused.
4.5. The owner of the vehicle filed an application before the trial
Court and got the vehicle back. In the said circumstances, the
conviction under Section 25 of the Act without adding the owner of
the vehicle is not legally maintainable.
4.6. The appellant has no knowledge about the transportation of
ganja found in the car.
4.7. There is huge delay of 36 days in producing the contraband
before the Special Court and there was no proper explanation for the
said delay. There was no evidence for the safe custody of the said
contraband.
4.8. Apart from that the occurrence took place on 30.12.2020. The
sample was sent to the Forensic Scientific Laboratory only on
08.10.2021. The said inordinate delay was not properly explained.
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4.9. There was no evidence adduced to show the appellant's
presence in the car on the date of occurrence.
4.10. Regarding receipt of information and sending the same to
the higher official, there was no cogent evidence available on record.
4.11. The requirements under Section 57 of the Act was not
properly complied with and the report under Section 57 of the Act
was not sent to the superior immediately. Hence, he prayed to allow
this appeal by setting aside the conviction and sentence passed by the
learned trial Judge.
5.Submissions made by the learned Additional Public
Prosecutor :-
5.1. P.W.2 and P.W.3 clearly deposed about the compliance of
Section 42 of the Act and to prove the same, document under Ex.P.9
also was marked. As per Ex.P.9, the information was reduced in
writing and the same was submitted to P.W.3 and he acknowledged
the same and also made an endorsement. Therefore, the submission of
the learned counsel for the appellant that there was no compliance
under Section 42 of the Act is not correct.
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5.2. The delay in producing the contraband before the Special
Court is immaterial when the entire contraband was produced before
the learned Judicial Magistrate along with the accused at the time of
remand itself. The learned Judicial magistrate also properly verified
and directed the police officials to produce the same before the Special
Court. In this case, huge quantity of contraband was seized and the
same was produced before the Special Court. At the time of
production, it was properly sealed and it was intact. Further, there
was no questioning about the tampering of seal during the
examination.
5.3. The delay in sending the sample to the Forensic Scientific
Laboratory is immaterial, when the seal was intact and there was no
tampering of seal.
5.4. It is true that the learned trial Judge, passed the conviction
on the appellant under Section 8(c) r/w 20(b)(ii)(C) and 25 of the
NDPS Act and failed to pass minimum sentence under Section 25 of
the Act. This Court has power under Section 382 of Cr.P.C. on the
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basis of the finding of the learned trial Judge that Section 25 of the Act
was made out. Acquittal under Section 29(1) of the NDPS Act is not a
ground to set aside the conviction under Sections 8(c) r/w 20(b)(ii)(C)
and 25 of the NDPS Act based on the evidence.
5.5. The vehicle was received by the owner is not a ground to
acquit the appellant under Section 25 of the Act. Further, 8(c) r/w
20(b)(ii)(C) of the NDPS Act is an independent offence. Once they
were found in the car possession of the contraband, they are liable to
be convicted.
5.6. In this case, the searching officer P.W.1 and P.W.2 cogently
deposed about the recovery of the contraband from the car from the
custody of A1 and the appellant. There was no explanation on the side
of the appellant for the seizure of the contraband on the date of the
contraband. The car is a private car and he drove the said car on the
date of the occurrence. In view of the said circumstances, the
prosecution clearly proved the case against the appellant.
6. This Court considered the rival submissions and perused the
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records available on record and also the precedents relied upon by
them.
7. The only question that arises for consideration in this appeal
is that whether the conviction and sentence imposed against the appellant
under Section 8(c) r/w 20(b)(ii)(c) and 25 of the NDPS Act for the
possession of 102 kg of ganja is legally maintainable?
8. Discussion on delay in sending sample:-
8.1. The contraband was recovered on 30.12.2020. The sample
was taken on 30.12.2020 and the same was produced before the
learned Judicial Magistrate on 08.02.2021. The sample was sent to the
lab on 18.02.2021. In the sample report, it is specifically stated that seal
was intact. Therefore, the argument of the learned counsel for the
appellant to disbelieve the recovery on the account of the delay in
producing the contraband before the FSL cannot be accepted and the
same was fortified by following paragraph of the the judgment of the
Hon'ble Supreme Court:-
8.2. Hardip Singh Vs. State of Punjab reported in (2008) SCC
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557:-
“it was of No consequence, for the fact of the recovery
of the said sample from the possession of the appellant had
been proved and established by cogent and reliable evidence
and that apart, it had also come in evidence that til the date of
parcels samples, were received by the chemical examiner, the
seal put on that parcel was intact....... The plea that there was
40 days delay was immaterial and would not dent of
prosecution case.”
8.3. State of Rajasthan Vs. Sahiram reported in 2019 10 SCC 649
“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 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.”
9. Discussion on the finding of the learned trial Judge that
Section 42 of the Act is not applicable to the present case :-
9.1. As per Section 42 of the Act, empowered officer who has
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received the secret information about the illegal possession,
transportation of narcotic drugs or psychotropic substance or
controlled substance, he is duty bound to reduce the said information
in writing and shall send the same to his immediate superior within
72 hours. The Hon’ble Constitution Bench of the Supreme Court in the
case of Karnail Singh v. State of Haryana, reported in (2009) 8 SCC
539 has considered the said requirement and laid the following
guidelines:-
“35.In conclusion, what is to be noticed is that
Abdul Rashid [(2000) 2 SCC 513 : 2000 SCC (Cri) 496]
did not require literal compliance with the requirements
of Sections 42(1) and 42(2) nor did Sajan Abraham
[(2001) 6 SCC 692 : 2001 SCC (Cri) 1217] hold that the
requirements of Sections 42(1) and 42(2) need not be
fulfilled at all. The effect of the two decisions was as
follows:
(a) The officer on receiving the information [of 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
official superior, before proceeding to take action in
terms of clauses (a) to (d) of Section 42(1).
(b) But if the information was received when the
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officer was not in the police station, but while he was on
the move either on patrol duty or otherwise, either by
mobile phone, or other means, and the information calls
for immediate action and any delay would have resulted
in the goods or evidence being removed or destroyed, it
would not be feasible or practical to take down in writing
the information given to him, in such a situation, he
could take action as per clauses (a) to (d) of Section 42(1)
and thereafter, as soon as it is practical, record the
information in writing and forthwith inform the same to
the official superior.
(c) In other words, the compliance with the
requirements of Sections 42(1) and 42(2) in regard to
writing down the information received and sending a
copy thereof to the superior officer, should normally
precede the entry, search and seizure by the officer. But
in special circumstances involving emergent situations,
the recording of the information in writing and sending
a copy thereof to the official superior may get postponed
by a reasonable period, that is, after the search, entry and
seizure. The question is one of urgency and expediency.
(d) While total non-compliance with requirements
of sub-sections (1) and (2) of Section 42 is impermissible,
delayed compliance with satisfactory explanation about
the delay will be acceptable compliance with Section 42.
To illustrate, if any delay may result in the accused
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escaping or the goods or evidence being destroyed or
removed, not recording in writing the information
received, before initiating action, or non-sending of a
copy of such information to the official superior
forthwith, may not be treated as violation of Section 42.
But 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 official superior, 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 official superior at all, then also it will be a
clear violation of Section 42 of the Act. Whether there is
adequate or substantial compliance with Section 42 or
not is a question of fact to be decided in each case. The
above position got strengthened with the amendment to
Section 42 by Act 9 of 2001.
9.2. In this case, on 30.12.2020, at 06.45 pm, P.W.2 received the
secret information about the illegal transportation and possession of
the contraband, and he reduced the same in writing. He reported the
said information to his Immediate Superior. Immediate Superior also
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acknowledged the same. To prove the same, the prosecution produced
Ex.P.9. From the perusal of Ex.P.9 and appreciation of evidence of
P.W.2 and P.W.1, this Court finds the compliance of mandatory
requirements of Section 42 of the Act. The learned counsel for the
appellant heavily relied on the discrepancies relating to the recording
of information and reducing in writing and reporting the said
information reduced in writing to his superior officer to disbelieve the
case of the prosecution about the compliance of the procedure stated
in Section 42 of the Act. The learned counsel for the appellant also
submitted that the Immediate Superior officer who is said to have
received the information has not deposed about the receipt of the
information from the searching officer. In some cases, the said
Immediate Superiors also are not examined. In all cases, there is some
material discrepancy between the evidence of the Immediate Superior
and the searching officer relating to the compliance of Section 42 of the
Act. This Court finds no material discrepancies which would affect the
evidence of the witness P.W.2 and P.W.1 in this aspect. When the
document Ex.P.9 was produced and marked without objection and the
same was proved through the examination of author of the document
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and the signature of the officer found in the document is not disputed
and the same reached to the Court within reasonable time, the non-
examination of the Immediate Superior to depose about the said
document is not a material circumstance to disbelieve the case of the
compliance of Section 42 of the Act. When the Immediate Superior
officer comes into the box and deposes about the receipt of the
information, there is no further requirement about the compliance of
Section 42 of the Act. The minor discrepancies in the evidence of the
‘Immediate Superior’ and the ‘Searching Officer’ which has not
affected the prosecution case of receipt of information are not a
ground to disbelieve the compliance. Further, the Hon’ble Supreme
Court reiterated the principle that unless the discrepancies go to the
root of the prosecution version, the same is not a ground to disbelieve
the testimony of the witness. Apart from that, most of the witnesses
are the police officers and examination is conducted after a lapse of
several months and we cannot expect them to keep everything vivid
in their memory. Each witness would depose in his own way on his
perception of the occurrence. One may say ‘a’ the other may say ‘A’.
Therefore, sitting in the armchair, this Court cannot expect the witness
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to depose before the Court with photographic memory. Therefore, this
Court finds that the prosecution clearly established the requirement of
procedure under Section 42 of the Act, on the basis of the evidence of
P.W.2 and P.W.1 and Ex.P.9. Even though the learned counsel for the
appellant entertained a suspicion about Ex.P.9 on the ground that the
same was produced belatedly, this Court is not inclined to accept the
same without any material to show that the same was concocted when
the evidence of P.W.1, P.W.2 and other contemporaneous document
containing the signature of the appellant more particularly, Ex.P.7 at
the relevant point of recovery i.e., 30.12.2020 at 23.10 hours are clear.
This Court is unable to accept the case of the learned counsel for the
appellants that there is some suspicion regarding Ex.P.9. Therefore,
Section 42 of the Act is strictly complied with. Therefore, this Court is
not inclined to accept the argument of learned counsel for the
appellants that the prosecution has not complied with the requirement
of Section 42 of the Act.
10.Discussion on the proof of ownership of the vehicle:
A vehement argument was made by the learned counsel for the
appellant with regard to the ownership of the vehicle, it is not
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necessary to prove the ownership of the vehicle to record a conviction
under 8(c) r/w 20(b)(ii)(C) of the NDPS Act 1985. The prosecution
proved the conscious possession of the contraband by the appellants
in the vehicle and the same has been fortified by the decision of the
Hon'ble Supreme Court in the case of Rizwan Khan Vs. State of
Chattisgarh which reads as follows:
"30. Now as far as the submission on behalf of the
accused that the ownership of the motor cycle (vehicle) has
not been established and proved and/or that the vehicle has
not been recovered is concerned, it is required to be noted
that in the present case the appellant and other accused
persons were found on the spot with the contraband
articles in the vehicle. To prove the case under the NDPS
Act, the ownership of the vehicle is not required to be
established and proved. It is enough to establish and prove
that the contraband articles were found from the accused
from the vehicle purchased by the accused. Ownership of
the vehicle is immaterial. What is required to be established
and proved is the recovery of the contraband articles and
the commission of an offence under the NDPS Act?
Therefore, merely because of the ownership of the vehicle is
not established and proved and /or the vehicle is not
recovered subsequently, trial is not vitiated, while the
prosecution has been successful in proving and
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establishing the recovery of the contraband articles from
the accused on the spot".
10.1. In view of the above, prosecution need not establish
ownership of the vehicle. Once prosecution proved the appellant's
conscious possession of the contraband in the vehicle in which he had
travelled, the conviction under section 8(c) r/w 20(b)(ii)(C) of the
NDPS Act 1985, can be maintained.
11. Sentence under section 25 of NDPS Act:
11.1.The learned trial Judge convicted the appellant under
Section 25 of the Act. But, no sentence was imposed against him. This
Court perused the evidence on record to pass conviction and sentence
for the offence under Section 25 of the Act. P.W.2 and P.W.1 clearly
deposed about the interception of the vehicle and presence of A1 and
A2 in the car. In the car, the contraband was recovered. In the said
circumstances, the car was in the custody of the appellant and other
accused/A1 along with the huge quantity of 102 kg of ganja.
Therefore, Section 25 of the Act is applicable to the present case. It is
not necessary to record the conviction, when the car belonged to the
owner of the accused. If they found the contraband in the car, the
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presumption under Sections 54 and 35 of NDPS Act comes. To record
conviction under Section 25 of the Act, it is necessary that the accused
should be having control over the vehicle but it is not necessary that
he must be a owner of the vehicle. Therefore, the charge framed
against the appellant under Section 25 of the Act is legally correct and
the same was also proved through the cogent and trustworthy
evidence of P.W.1 and P.W.2. There is no explanation on the side of
the appellant/A2 relating to the huge quantity of contraband in the
car. Therefore, the conviction under Section 25 of the Act is legally
maintainable. In view of the evidence available to convict the
appellants under section 8(c) r/w 20(b)(ii)(C) of the NDPS Act 1985,
acquittal under section 29 of the NDPS Act has no bearing in
confirming the finding of the learned trial judge under section 8(c)
r/w 20(b)(ii)(C), 25 of the NDPS Act 1985. Therefore the contention of
the counsel for appellant that the conviction under section 8(c) r/w
20(b)(ii)(C), 25 of the NDPS Act 1985 is not legally maintainable after
acquitting under section 29 of NDPS Act cannot be accepted and the
same deservers to be rejected and accordingly rejected.
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11.2. As rightly argued by the learned Additional Public
Prosecutor, this Court has power to give minimum sentence for the
offence under Section 25 of the Act. Minimum sentence as per the act
is concerned, 10 years of Rigorous Imprisonment and fine of Rs.
1,00,000/-. Therefore, this Court inclines to give minimum sentence
under Section 25 of the NDPS Act, apart from the award of sentence
for the offence under Section 8(c) r/w 20(b)(ii)(C) of the Act.
12. The learned counsel for the appellants made the detailed
submission that the recovered contraband was without flowering
tops. This Court has perused the cross-examination with regard to
Section 57 report and the chemical analysis report. It is true that, in the
chemical analysis report, there is no specific mention of the flowering
and fruiting tops. However, the report clearly discloses the presence
of cannabinoids. Even if the ganja was recovered along with leaves,
seeds, and stems, as suggested by the learned counsel for the
appellants, weighing the flowering tops, fruiting parts, and other
materials separately would not make any material difference, since the
recovered contraband weighs 102 kg of ganja which is a huge
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commercial quantity.
13. Further, there is no evidence on record from the side of the
accused to show that if the contraband was separated from the leaves
or other parts the weight will be below the commercial quantity. Only
if the weight of the recovered contraband was between 20 kg and 25
kg the argument of the learned counsel for the appellants could be
considered. In the present case, as the recovered contraband weighs
more than 25 kg, this Court is not inclined to accept the contention
that the case falls below the commercial quantity.
14. Accordingly, the appellant is sentenced to undergo 10 years
of Rigorous Imprisonment and to pay a fine of Rs.1,00,000/- (Rupees
One Lakh Only) in default to undergo 12 month Simple Imprisonment
under Section 25 of the NDPS Act and both the sentence shall run
concurrently.
15. In view of the above discussion, this Court finds no merit in
the appeal. The prosecution clearly proved the joint possession of the
huge quantity of ganja in the custody of the appellant and A1 in the
car and the same was clearly proved through the cogent and
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trustworthy evidence of P.W.1 and P.W.2 and the contemporaneous
document namely, Ex.P.6 & Ex.P.7 and the secret information report
under Ex.P.9 and also a detailed report under Ex.P.14 & Ex.P.15. The
Chemical Analysis Report also revealed that the recovered contraband
contained cannabis and the remaining contraband was also marked as
MO.3 without any objection. In view of the above, this Court finds no
merit in this appeal.
16. Accordingly, this Criminal Appeal is dismissed and
conviction and sentence passed by the I Additional Special Court for
NDPS Act Cases, Madurai, in C.C.No.296 of 2021, dated 21.04.2023, is
hereby confirmed. Consequently, the connected miscellaneous
petition is closed.
15.10.2025.
NCC :Yes/No
Index :Yes/No
Internet :Yes/No
dss/sbn
To:
1.The I Additional Special Court for NDPS Act Cases,
Madurai.
2.Inspector of Police,
Melur Police Station,
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Madurai City.
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.
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K.K.RAMAKRISHNAN, J.
dss/sbn Crl.A.(MD).No.472 of 2023 and Crl.MP(MD)No.9059 of 2023 15.10.2025 Page No.26/26 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/11/2025 02:51:14 pm )