Madras High Court
Murugesan vs The State on 31 August, 2021
Crl.A.(MD) No.10 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 31.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
Crl.A.(MD) No.10 of 2016
Murugesan : Appellant/Accused
Vs.
The State
By the Inspector of Police,
Chathirapatti Police Station,
Dindigul District. : Respondent/Complainant
PRAYER: The Criminal Appeal is filed under Section 374(2) of the Code
of Criminal Procedure, to set aside the order of conviction and sentence,
dated 18.12.2015 made in C.C.No.298 of 2007, on the file of the learned II
Additional Special Court for NDPS Act Cases, Madurai.
For Appellant : Mr.D.Venkatesh
For Respondent : Mr.M.Muthumanikkam
Government Advocate (Crl.side)
1/14
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.10 of 2016
JUDGMENT
The present Criminal Appeal is directed against the conviction
and sentence, dated 18.12.2015, made in C.C.No.298 of 2007, on the file of
the II Additional Special Court for NDPS Act Cases, Madurai.
2. The appellant is the sole accused. He stood charged for the
offences punishable under Sections 8(c) r/w 20(b)(ii)(B) of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as
“NDPS Act”).
3. After full-fledged trial, the learned II Additional Special Judge
for NDPS Act Cases, Madurai, came to the conclusion that the appellant
was guilty under Section 8(c) r/w 20(b)(ii)(B) of the NDPS Act and
sentenced to undergo Rigorous Imprisonment for 18 months and to pay a
fine of Rs.10,000/-, in default, to undergo Simple Imprisonment for 1
month. Challenging the said conviction and sentence, the appellant is before
this Court, by way of filing the present Criminal Appeal.
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.10 of 2016
4. The relevant facts of the case, which gave rise to filing of this
appeal are necessary to be recapitulated for the disposal of this appeal:-
(i) P.W.3-Karuppaiah, the then Inspector of Police, Chathirapatti
Police station, on 29.04.2006 around 12.15 p.m., while he was on patrolling
duty in respect of identifying the prohibition offences, received an
information and in turn, he reached Periya Odai, Mathulamparai Village,
wherein, he secured the appellant/accused and informed about the rights
having by him under Section 50 of NDPS Act. The accused did not give an
option to exercise his rights. He permitted the police officials for
conducting search.
(ii) On such occasion, he produced the bag, which containing 5
Kilograms of Ganja. After seeing the same, P.W.3 arrested the accused and
recovered the contraband under the cover of Mahazar. In the said mahazar,
P.W.2-the then Sub-Inspector signed as a witness. After recovering the
contraband, P.W.3 took 50 grams of Ganja from the total contraband and
afterwords, the same was packed and sealed for the purpose of chemical
examination. On the same day, around 14.00 hours, P.W.3 returned to the
police station along with accused and contraband, registered a case against
the accused in Cr.No.88 of 2006 for the offences punishable under Sections
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.10 of 2016
8(c) r/w 20(b)(ii)(B) of the NDPS Act. The printed FIR was marked as
Ex.P5. He send the contraband to the Court and had given a requisition
letter for sending the contraband to the chemical examination.
(iii) In turn, along with the proceedings issued by the Court,
P.W.1-Meenakshi, Chemical Examiner in Forensic Department, Madurai,
on 17.05.2006 received the contraband for chemical examination and after
examination, she issued a report that the sample which have been received
is a Cannibis. The requisition given by P.W.3, proceedings issued by the
Court and the report received by the Chemical Examiner were marked as
Ex.P.1 to Ex.P3 respectively.
(iv) In continuation of investigation, after receipt of the report
from the Chemical Examiner, P.W.3 came to the positive conclusion that the
appellant/accused is liable to be convicted under Sections 8(c) r/w 20(b)(ii)
(B) of the NDPS Act and filed a final report against the accused,
accordingly.
5. Based on the materials available, the trial Court framed the
charges for the offences punishable under Sections 8(c) r/w 20(b)(ii)(B) of
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.10 of 2016
NDPS Act. The accused denied the charges and opted for trial. Therefore,
the accused was put on trial.
6. During the course of trial proceedings, in order to prove the
case of prosecution, as many as 3 witnesses i.e., P.W.1 to P.W.3 were
examined on the side of the prosecution and 5 documents were exhibited as
Ex.P1 to Ex.P5, besides two Materials Objects (M.O.1 & M.O.2).
7. Out of the above said witnesses, P.W.1-Tmt.Meenakshi, who is
the Chemical Examiner, speaks about the receipt of sample contraband and
about the examination made on the said contraband. According to him, the
contraband received by him is a Ganja.
(i) P.Ws.2 & 3 are the police officers speaks about the information
received, arrest of the accused, recovery of contraband, registration of the
case and about the filing of final report.
8. When the above incriminating materials were put to the
accused under Section 313 of Cr.P.C., he denied the same as false.
However, he did not chose to examine any witness or mark any document
on his side.
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.10 of 2016
9. Having considered the materials placed before the trial Court,
the learned II Additional Special Judge for NDPS Act Cases, Madurai, came
to the conclusion that the accused was found guilty for the offence
punishable under Section 8(c ) r/w 20(b)(ii)(B) of NDPS Act and sentenced
him as stated above. Aggrieved by the said conviction and sentence, the
appellant is before this Court with this appeal.
10. I have heard Mr.D.Venkatesh, learned counsel appearing for
the appellant/accused and Mr.M.Muthumanikkam, learned Counsel for the
Government of Tamil Nadu appearing for the State. I have also perused the
records carefully.
11. It is the submission of the learned counsel appearing for the
appellant that during the time of search and recovery, the police officers,
who deal with the case, have not been followed the sections 42, 50, 52, 55
and 57 of the NDPS Act and therefore, the said violation is nothing but
amounts to not proving the case of the prosecution. Accordingly, he prayed
to allow the appeal by setting aside the conviction and sentence awarded by
the trial Court.
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.10 of 2016
12. Per contra, the learned Government Advocate (Crl.side)
appearing for the respondent has drawn the attention of the evidence of
P.W.3 would submit that Sections 42(2), 50 & 57 of the NDPS Act have
been complied with and would further add that as per the judgments
rendered by the Hon'ble Supreme Court, even in respect of Section 42(2) of
the NDPS Act, substantial compliance is enough and invited the attention of
this Court to the testimonies of P.Ws.2 & 3 and would submit that the
mandatory duty cast upon the investigating agency has been complied with
in letter and spirit.
13. This Court has carefully considered the rival submissions and
perused the oral and documentary evidence and other materials and also the
original records.
14. Initially, the submission made by the learned counsel
appearing for the appellant is that in respect to the violation of Section 42 of
NDPS Act, it is a case, the evidence given by P.Ws.2 & 3 reveals the fact
that when at the time of receiving the information, they were out side the
police station, particularly, while at the time they are in duty to identify the
offence relating to the prohibition.
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.10 of 2016
15. Section 42 of the NDPS Act will be invocable only if the
search is made by the police officer or the concerned authority, upon the
prior information, when such an information or intimation or knowledge
comes to the notice of the Investigating Officer in course of the regular
patrolling or an investigation of some other offence, it is not necessary to
follow in all cases. In this aspect, it is necessary to extract the relevant
portion of the judgment in Sarju alias Ramu vs. State of Uttar Pradesh
reported in (2009) 13 Supreme Court Cases 698:-
“22. We must, however, notice that recently a
Constitution Bench of this Court in Karnail Singh v. State of
Haryana in view of difference of opinion in Abdul Rashid
Ibrahim Mansuri vs. State of Gujarat opining that Sajan
Abraham v. State of Kerala holding the said principle to be
directory.”
Therefore, herein it is a case, the facts and circumstances shown by the
prosecution witnesses, P.W.3 in this case has not followed Section 42 of the
NDPS Act.
16. Secondly, in respect to the violation of under Section 50 of the
NDPS Act, it is not in dispute that the evidence given by P.Ws.2 & 3
discloses the fact that the contraband had been recovered from the bag,
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.10 of 2016
which possessed by the accused. In otherwise, during the time of
recovering the same, there is no personal search is made. Therefore, in this
aspect also, in view of the judgment rendered by our Hon'ble Apex Court in
State of H.P., vs. Pawan Kumar reported in 2005(4) SCC 350 , it was held
that section 50 would be applicable only in the case of personal search of
the accused and not of some baggage like a bag, article or container, etc.,
which he may be carrying. Now, on considering the said observations made
in the judgment, I am of the view that, herein it is a case, the non following
of the mandatory provisions under Section 50 of the NDPS Act is not at all
having any force to assail the present case.
17. One another submission made by the learned counsel
appearing for the appellant is that, in the present case, after recovering the
property on 29.04.2006, the same was produced before the concerned Court
on 17.05.2006 with delay of 18 days. Further, in this respect, neither the
Investigating Officer nor the witnesses examined on the side of the
prosecution did not explain under whose custody the property was found
available in the intergnum period. It is the further submission made by the
learned counsel appearing for the appellant is that, in the present case, after
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.10 of 2016
registration of the case, the Investigating Officer by following the procedure
narrated under Section 57 of the NDPS Act, did not sent any report to the
superior officer as what had happened during the time of search and about
the recovery of contraband. According to him, the non following the said
procedure would vitiate the entire proceedings and thereby he prayed to
allow this appeal.
18. In this regard, the learned Government Advocate appearing
for the respondent would contend that the provisions narrated under Section
52 & 57 of the NDPS Act are only directory in otherwise, non following the
same with letter and spirit is no way would affect the case of the prosecution
with entirety.
19. By considering the rival submission, In Gurbax Singh v.
State of Haryana reported in 2001 (3) Supreme Court Cases 28, the scope
of Sections 50, 52, 55 and 57 came up for consideration and it has been held
that the provisions of Sections 52 and 57 are directory and the violation
thereof would not ipso facto violate the trial or conviction and the
Investigating Officer cannot totally ignore these provisions and failure on
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.10 of 2016
his part will have a bearing on appreciation of evidence regarding arrest of
the accused or seiaure of the article. It is relevant to extract paragraph 9 of
the said decision, thus:-
“9. The learned counsel for the appellant next
contended that from the evidence it is apparent that the IO has
not followed the procedure prescribed under Sections 52, 55 and
57 of the NDPS Act. May be that the IO had no knowledge
about the operation of the NDPS Act on the date of the incident
as he recorded the FIR under Sections 9/1/78 of the Opium Act.
In our view, there is much substance in this submission. It is
true that provisions of Sections 52 and 57 are directory.
Violation of these provisions would not ipso facto violate the
trial or conviction.”
Hence, in view of the above, the Investigating Officer cannot totally ignore
these provisions and such failure will have a bearing on appreciation of
evidence regarding arrest of the accused or seizure of the article.
20. It is not in dispute that the property was kept with
Investigating Officer for nearly 18 days. In this regard, he has admitted that
there was no proof that the property was available in the custody of the
police. He had also admitted that there was no particulars to weight and
sealing the property as required under Section 55 of the NDPS Act. Further,
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.10 of 2016
the prosecution has not led any evidence whether the chemical analyser
received the sample with proper intact seals. Further, it is apparent that the
Investigating Officer has not followed the procedure prescribed under
Section 57 of the NDPS Act of making full report of all particulars of arrest
and seizure to his immediate superior officer.
21. One another aspect in this appeal is that the Investigating
Officer cannot tell as to the sample number of the sample contraband drawn
immediately after the seizure, on the other hand, in Ex.P3-Chemical
Analysis Report also, the seal number has not been mentioned. In the light
of the said fact, the chemical analysis report marked as Ex.P3 is also of no
use for the prosecution for the reason that unless a particular sample with
seal number is relatable to the concerned accused, it cannot be said that the
contraband carried by the accused was Ganja. Moreover, the bag, in which
the alleged contraband has been recovered from the accused, has not been
produced before the Court and marked as material object.
22. Therefore, in the considered opinion of this Court, the above
said infirmities would definitely vitiate the case of the prosecution and
hence, the appellant/accused is entitled to benefit of doubt. The trial Court
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.10 of 2016
has not properly appreciated the materials placed before it in proper
perspective and therefore, the same warrants interference.
23. In the result, this Criminal Appeal is allowed and the
judgment passed in C.C.No.298 of 2007, dated 18.12.2015 by the learned II
Additional Special Judge for NDPS Act Cases, Madurai is set aside and the
appellant is acquitted of the charges framed against him. The bail bonds
executed by the appellant shall stand terminated. The fine amount, if any,
paid by the appellant, is directed to be refunded to him.
31.08.2021
Index : Yes/No
Internet : Yes/No
am
To:-
1.The II Additional Special Court for NDPS Act Cases,
Madurai.
2.The Inspector of Police,
Chathirapatti Police Station,
Dindigul District.
3.The Section Officer,
Criminal Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.10 of 2016
R.PONGIAPPAN,J.
am
Crl.A(MD)No.10 of 2016
31.08.2021
https://www.mhc.tn.gov.in/judis/
