Madras High Court
Jeyamari vs The State Represented By on 15 May, 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 24.01.2025
Pronounced on : 15.05.2025
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
CRL.A(MD).Nos.5, 70 & 340 of 2023 and 851 of 2024
and
Crl.MP(MD)Nos.11173 & 9622 of 2024
Jeyamari ... Appellant/Accused No.4
(in Crl.A.(MD).No.5 of 2023)
Kumaravel ... Appellant/Accused No.3
(in Crl.A.(MD).No.70 of 2023)
Kaleeshwaran ... Appellant/Accused No.1
(in Crl.A.(MD).No.340 of 2023)
Ramakrishnan @ Anal Ramar ... Appellant/Accused No.2
(in Crl.A.(MD).No.851 of 2024)
Vs.
The State represented by,
The Inspector of Police,
Keeraithurai Police Station,
Madurai District.
(Crime No.4 of 2021) ... Respondent/Respondent
Complainant
(In all appeals)
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COMMON PRAYER: Criminal Appeals have been filed under Section 374 (2)
of Criminal Procedure Code & 415(2) of BNSS Act, to call for the records
relating to the judgment passed in C.C.No.280 of 2021 dated 08.11.2022 on the
file of the II Additional Special Court for NDPS Act Cases, Madurai, and set
aside the same and acquit the appellants/A4, A3, A1 & A2.
For appellants : Mr.G.Karuppasamy Pandian,
(in Crl.A.(MD).No.5 of 2023)
: Mr.Subash Babu, Seniour Counsel
for Mr.M.Chandrabose
(in Crl.A.(MD).No.70 of 2023)
: Mr.M.Jegadeesh Pandian,
(in Crl.A.(MD).No.340 of 2023)
: Mr.Muthuchharan Sundresh
(in Crl.A.(MD).No.851 of 2024)
For respondent : Mr.R.Meenakshi Sundaram
Additional Public Prosecutor
(In all appeals)
COMMON JUDGMENT
The appellants/A4, A3, A1 & A2 on the file of II Additional Special Court for NDPS Act Cases, Madurai, have filed these appeals, challenging the conviction and sentence imposed against them on 08.11.2022, wherein, they were convicted for the offence under Section under Sections 8(c) r/w 20(b)(ii) (C) of the NDPS Act, 1985 for the illegal joint possession of 30 kg of ganja. 2/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/05/2025 05:41:53 pm )
2. Since the appellants in all the appeals were arrayed as accused in the same crime number, these appeals are taken up together for hearing and disposed of by way of this common judgment.
3.The brief facts of the case as follows:
On 03.01.2021, at about 08.15 a.m, the Sub-Inspector of police, Keeraithurai Police Station, Madurai District, P.W.3, received the secret information about the smuggling of Ganja for sale at Keeraithurai area. P.W.3 reduced the same in writting under Ex.P.7 and submitted the same to his Superior Officer and he also permitted P.W.3 to proceed further in this case. Hence, P.W.3 along with his team members went to the place of occurrence at 08.00 am. At 08.15 a.m, when they were keeping surveillance, P.W.3 and his team found 4 persons, who were coming in 2 two wheelers bearing Reg.Nos.TN-64-U-2270 and TN-59-BP-7740 with two white colour plastic bags. The informant identified the persons and left the scene of occurrence.They intercepted the appellants and introduced themselves as police officers and they were informed about their right to be searched before the Judicial Magistrate or the Gazetted officer as required under Section 50 of the NDPS Act. The accused consented to conduct the search by the officer himself and hence, P.W.1 conducted search and found two white 3/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/05/2025 05:41:53 pm ) colour plastic bags. They opened the bags and each bag contained 15 kg of ganja. Thereafter, they recovered the contraband after following the proceedure and took the samples of (50 grams from each bag) S1 & S2 and S3 & S4 and properly sealed the same. Thereafter, he arrested the appellants. The appellants also gave confessions and the same were recorded. After that, P.W.3 handed over the accused along with contraband with a detailed report under Section 57 of NDPS Act to P.W.4. P.W.4 remanded the accused along with contraband and FIR was registered in Crime No.4 of 2021 for the offence under Section 8(c) r/w 20(b)(ii)(C), 25 and 29(1) of the NDPS Act, under Ex.P.8. After completing all the formalities, the learned Judicial Magistrate remanded the appellants.
Thereafter, P.W.5 conducted investigation and filed the final report before the II Additional Special Court for NDPS Act Cases, Madurai, and the same was taken on file in C.C.No.280 of 2021. The learned trial Judge issued summons to the accused and on their appearance, served the copies under Section 207 Cr.P.C. and framed the necessary charges and questioned the accused. The accused pleaded not guilty and stood for trial.
4. The prosecution, to prove the case, examined P.W.1 to P.W.5 and exhibited 13 documents as Ex.P.1 to Ex.P.13 and produced 8 material objects as 4/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/05/2025 05:41:53 pm ) M.O.1 to M.O.8. 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 examinationof the witnesses on the side of the appellants. On the side of the defence, no one was examined and no document was marked.
5. The learned trial Judge after considering the oral and documentary evidence, acquitted the appellants from the charge under Sections 25 and 29(1) of the NDPS Act and convicted them for the offence under Sections 8(c) r/w 20(b)(ii)(C) of the NDPS Act, 1985, and sentenced them to undergo 10 years Rigorous Imprisonment each and to pay a fine of Rs.1,00,000/- (Rupees One Lake only) each in default, to undergo, 12 months Simple Imprisonment each for the offence under Sections 8(c) r/w 20(b)(ii)(C) of the NDPS Act.
6. Challenging the same, present appeals have been filed.
7. Mr.Subash Babu, learned senior counsel for Mr.M.Chandrabose appearing for the appellant/A3 in Crl.A(MD)No.70 of 2023, 5/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/05/2025 05:41:53 pm ) Mr.G.Karuppasamy Pandian, learned counsel appearing for appellant/A4 in Crl.A(MD)No.5 of 2023, Mr.M.Jegadeesh Pandian, learned counsel for the appellant/A1 in Crl.A(MD)No.340 of 2023 and Mr.Muthuchharan Sundresh, learned counsel for the appellant/A2 in Crl.A(MD)No.851 of 2024 have jointly made the following submissions:-
8. All the counsel in one voice submitted that a false case was registered by the respondent police. Without any recovery, the respondent police filed the present case against the appellants by preparing false document and implanting the contraband. The same is revealed from the non-compliance of the mandatory provisions of NDPS Act.
9. The requirement under Section 42 of the Act was not complied with. There was infirmity in the evidence of P.W.1 to P.W.3 relating to the compliance under Section 42 of the Act.
10. Apart from that, even the admitted case of the prosecution is that a report under Section 57 of the Act was filed after a lapse of 1 ½ years during the course of trial and the same was also admitted by the Investigating Officer. The 6/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/05/2025 05:41:53 pm ) documents were prepared at the police station and signatures of the accused were obtained. There confession statement was obtained from A2 and recovery was made only on the basis of the confession of A2. In Ex.P.5 and Ex.P.6, the signature of the accused No.1 and 3 did not find place. The learned trial Judge, acquitted the appellants under Section 25 and 29 of the NDPS Act and no appeal was filed on the side of the prosecution. Therefore, the case of the prosecution that all the appellants are said to have conspired and carried the contraband, which comes under the commercial quantity, is not correct.
11. When the above case of the prosecution was disbelieved by the Court below, the Court below has no jurisdiction to convict the appellants under Section 8(c) r/w 20(b)(ii)(c) of the NDPS Act for the possession of commercial quantity.
12. They further submitted that before registration of the case, the slip, which was affixed on the material objects, contained the crime number. This creats doubt over the registration of the case.
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13. In the documents namely, Ex.P.1 to Ex.P.4., there was no mentioning of the vehicle numbers. In aragraph No.59 of the order of the learned trial Judge it is found that the charge under Section 29 of the Act was not proved on the ground that there was no sufficient evidence regarding the ownership of the vehicle to convict the appellants. In the last line of paragraph, it was stated that A1 and A4 are said to be related to each other. Therefore, this is a circumstance that would speak for itself. The said finding is perverse and hence, both counsel prayed to allow the appeals by setting aside the conviction and sentence imposed against the appellants.
14.1. The learned Additional Public Prosecutor on instructions and upon perusal of the records submitted that merely the absence of signature in the athachi is not a ground to disbelieve the recovery when the signatures of all the accused found place in the remaining contemporaneous documents. When all the accused had assembled together in the place of the occurrence along with the contraband, and when all are related to each other and in the case of joint recovery of 30 kg of ganja, the conviction imposed against them under Section 8(C) r/w 20(b)(ii)(C) of NDPS Act, is legally sustainable. 8/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/05/2025 05:41:53 pm ) 14.2. He further submitted that the lapse on the part of the officer in not filing report immediately under Section 57 of the Act, is not a ground to acquit the accused under the grave charge.
14.3. He further submitted that even in the law laid down by the Hon'ble Supreme Court judgment in Karnail Singh Vs. State of Haryana reported in (2009) 8 SCC 539, non-compliance of procedure under Sections 42 and 57 of the Act is not a ground to acquit the accused. In this case, even though there is compliance of 42 of the Act, there is some procedural lapse in not filing report under Section 57 of the Act. Therefore, they are not entitled for acquittal. The procedure under Section 52 of the Act is not an issue since the entire contraband and all the other things were produced before the Court at the time of the accused's remand itself. Apart from that, all the accused have criminal antecedents. Therefore, he prayed for dismissal of the appeals by confirming the conviction and sentence imposed by the learned trial Judge.
15. This Court considered the rival submissions and also perused the records and the impugned judgment and the precedents relied upon by the appellants.
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16. The question arising for consideration in these appeals is whether the prosecution has established the case beyond reasonable doubt against the appellants and the conviction and sentence imposed by the learned trial Judge against the appellants can be sustained or not?
17. Discussion of the the role of A2 and A4:-
17.1. According to the prosecution case, all the accused conspired together to carry the contraband in two bags, each containing 15 kg each and totally 30 kg in 2 two wheelers for sale. Therefore, the charges were framed under Sections 29 and 25 of the NDPS Act. The learned trial Judge acquitted all the accused from the above charges and also recorded the following finding:-
“59. In so far as Section 25 and 29(1) of the Act is concerned, this Court holds that since all the four accused were arrested with the contraband and in the two 2-wheelers, the question of Section 29(1) would lose its significance. Further there is no sufficient materials regarding the vehicle and therefore the Court holds that the offence u/s 25 is also not proved. Again there is no question of converting the case from a commercial quantity to medium quantity since they had all come in two 2 wheelers. A1 to A3 are said to be related to each other, and therefore it would speak for itself.” 10/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/05/2025 05:41:53 pm ) 17.2. Further, even as per the prosecution case, all the accused conspired together and hence, they registered a case under Section 29 of NDPS Act. The following evidence of P.W.3 is relevant in this aspect:-
' 4 vjphpfSk; Tl;lhf nrh;e;J fQ;rhit flj;jpajhy;
xnu tHf;fhf gjpt[ bra;njhk;'
'1>2 vjphpfsplk; 15 fpnyht[k;> 3> 4 vjphpfsplk; 15
fpnyht[k;> jdpj;jdpahf ifg;gw;wg;gl;Ls;sJ vd;why; rhpjhd;.
2 mst[fSk; xnu ,lj;jpy; itj;J ifg;gw;wg;gl;lJ.'
17.3. In the said circumstances, this Court is of the considered view that after acquitting all the accused under Section 29 of NDPS Act, the conviction under Section 8(c) r/w 20(b)(ii)(C) of NDPS Act, by clubbing both the quantities, which were recovered from two pairs of accused, is not legally maintainable when the recovery is made separately and separate athachi were prepared and acquittal was passed under Section 29 of the Act with specific finding that there was no conspiracy. Hence, only the accused with concious possession of the contraband alone is liable to be convicted under Section Section 8(c) r/w 20(b)(ii)(B) of NDPS Act and they are not liable to be convicted under Section 8(c) r/w 20(b)(ii)(C) of NDPS Act for the reason that 11/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/05/2025 05:41:53 pm ) there was no proof of conscious joint possession. Therefore, this Court finds that the charge under Section 8(c) r/w 20(b)(ii)(C) of NDPS Act framed against all the accused and conviction rendered against all the accused for possession of the commercial quantity is not legally sustainable.
18. Admittedly, there was no recovery from A2 & A4. The officer admitted as follows:-
'mj;jhl;rpapy;> 2k; vjphpfsplk; K:l;il vJt[k;
ifg;gw;wg;gl;ljhf mj;jhl;rpapy; Fwpg;gplg;gltpy;iy vd;why;
rhpjhd;.'
19. The presence of the accused at the scene of occurrence in the absence of their signature in the recovery mahazar namely, athachi, is not believable one. Apart from that, not even confession was recorded from the accused to prove their presence. If the case of the prosecution is that all the accused were found in conscious possession of the contraband and the same was recovered, in all fairness, the police officers should have obtained the signatures of all the accused in the recovery mahazar. Hence, it is not their case, all the accused refused to sign the recovery mahazar. Therefore, two legal inferences are available namely, either the presence of the accused in the place of occurrence is doubtful or P.W.3, the Search Officer, failed to obtain signatures in the athachi 12/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/05/2025 05:41:53 pm ) with the intention to aid the accused to get acquittal from the case. Therefore, this Court is not satisfied with the material adduced by the prosecution to prove the presence of A2 and A4 in the occurrence place. Therefore, in the absence of any recovery from both the accused, this Court is not inclined to concur with the conviction and sentence imposed against A2 & A4 under Section 8(c) r/w 20(b)
(ii)(C) of NDPS Act.
20. Discussion on the role of A1 and A3:-
20.1. The submission of all the counsel appearing for the appellants that there was no compliance of Sections 42 & 57 of the Act and also brought out the discrepancies between the evidence of P.W.1 to P.W.3 relating to the arrest and recovery. This Court perused the entire evidence. P.W.3 deposed that on 03.01.2021 at about 08.15 a.m, he received the secret information about the smuggling of ganja at Keeraithurai, Madurai. He reduced it in writting under Ex.P.7 and also informed to his Immediate Superior. The said evidence is cogent and also the said Ex.P.7 also contained the acknowledgedment of receipt of the information by the superior. Therefore, this Court cannot accept the contention of the learned counsel for the appellant that there was non-compliance of mandatory requirement under Section 42 of the Act.
13/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/05/2025 05:41:53 pm ) 20.2. P.W.3 also deposed that after recovery, arrest of the accused and registration of FIR, he sent a detailed report to his Immediate Superior under Section 57 of the NDPS Act, on the same day itself and Ex.P.9 was produced before the Court at the time of the remand of accused itself. Therefore, this Court also finds no merit in the contention of the appellant that there was no compliance of Section 57 of the NDPS Act.
20.3. Except some minor discrepancies in the evidence of P.W.1 and P.W.2 about the recovery of the contraband from A1 and A3, the presence of A1 and A3 is proved through the athachi, where A1 and A3 subscribed their signatures. The evidence of P.W.1 and P.W.3 relating to the recovery of contraband independently from A1 and A3 is cogent and believable one. The entire seized contraband also was produced before the Court along with the remand. The accused were also identified by the informant. Hence, the prosecution proved the recovery from A1 and A3 beyond reasonable doubt on the basis of the remaining material documents. The chemical analysis report also is positive and therefore, the prosecution proved the separate seizure of 15 kg from A1 and A3. Hence, the recovery was made only from A1 and A3. Since there is positive finding about the absence of the conspiracy under Section 29 of the NDPS Act conviction under Section 8(c) r/w 20(b)(ii)(C) of the Act is not maintainable against A1 & 14/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/05/2025 05:41:53 pm ) A3. This Court inclines to set aside the conviction and sentence passed against A1 ( Crl.A.(MD).No.340 of 2023 ) and A3 ( Crl.A.(MD).No.70 of 2023) and convict them under Section 8(c) r/w 20(b)(ii)(B).
21. Apart from that the submission of the learned Additional Public Prosecutor that the appellants have some bad antecedent and some IPC cases are pending against them is concerned, this Court perused the same and all the cases against A1 were registered between 2010 – 2016 and A3 has had antecedent for committing minor offences and that is not a ground to convict A3 under the grave charge of the possession of the contraband narcotic substance with grave punishment without proof of foundational facts as stated by the Hon'ble the Consistution Bench of Supreme Court in Mukesh Singh Vs. State (Narcotic Branch of Delhi) reported in (2020) 10 SCC 120.
22. As already discussed above, the prosecution miscerably failed to prove the concious possession of the appellants in Crl.A(MD)No.5 of 2023 and Crl.A(MD)No.851 of 2024 and also the prosecution miscerably failed to prove 30 kg of ganja in the conscious joint possession of A1 and A3. Therefore, in view of the acquittal under Section 29(1) of the NDPS Act and the separate 15/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/05/2025 05:41:53 pm ) recovery of 15 kg each from A1 and A3 were made, this Court is inclined to convict the appellants/A1 and A3 under Section 8(c) r/w 20(b)(ii)(B) of NDPS Act by setting aside the conviction and sentence imposed aginst them for the offence under Section 8(c) r/w 20(b)(ii)(C) of NDPS Act.
23. Accordingly, the appeals filed by the appellant/A2 in Crl.A(MD)No. 851 of 2024 and the appellant/A4 in and Crl.A(MD)No.5 of 2023 are allowed and the conviction and sentence imposed against them in C.C.No.280 of 2021 dated 08.11.2022 is hereby set aside and they are set at liberty unless their presence is required in some other case.
24. Appeals in Crl.A(MD)No.70 of 2023 and Crl.A(MD)No.340 of 2023 are partly allowed on the following terms:-
i) The conviction and sentence passed against the appellant/A1 in Crl.A(MD)No.340 of 2023 and the appellant/A3 in Crl.A(MD)No.70 of 2023 by the impugned judgment dated 08.11.2022 under Section 8(c) r/w 20(b)(ii)(C) of the NDPS Act, is hereby set aside.
ii) This Court convicted the appellant/A1 in
Crl.A(MD).No.340 of 2023 and the appellant/A3 in
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Crl.A(MD)No.70 of 2023 for the ofence under Section 8(c) r/w 20(b)(ii)(B) of the NDPS Act and sentenced them to undergo 4 years and 5 months Rigorous Imprisonment and to pay a fine of Rs.20,000/- (Rupees Twenty Thousand Only) and in default to undergo 3 months Simple Imprisonment.
iii) The period already undergone by the appellants/A1 & A3 is ordered to be set off under Section 428 of Cr.P.C.,
- Consequently, the connected miscellaneous petitions are closed.
15.05.2025 NCC :Yes/No Internet :Yes/No Index :Yes/No dss Note : Issue order copy on 19.05.2025 17/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/05/2025 05:41:53 pm ) K.K.RAMAKRISHNAN, J., dss To:-
1. The II Additional Special Court for NDPS Act, Madurai.
2. The Inspector of Police, NIB-CID Police Station, Thoothukudi District.
3.The Superintendent, Central Prison, Madurai.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
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