Lakshmi vs The State Rep By
2022 Latest Caselaw 16922 Mad

                                                                                   Crl.A.No.532 of 2018


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 28.10.2022

                                                       CORAM:

                             THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                                Crl.A.No.532 of 2018

                Lakshmi                                                ...   Appellant

                                                         Vs

                The State rep by
                The Inspector of Police,
                T-9, Pattabiram Police Station,
                Chennai
                (Crime No.335 of 2014)                       ...   Respondent
                Prayer: Criminal Appeal filed under Section 374(2) of Code of Criminal
                Procedure, to set aside the Judgment dated 10.07.2018 passed in C.C.No.33 of
                2015 on the file of the Principal Special Judge under NDPS Act, Chennai.
                                       For Appellant    : M/s.L.Srileka

                                       For Respondents : Mr.A.Gopinath
                                                         Government Advocate (Crl. Side)

                                                       ORDER

This Criminal Appeal has been filed as against the Judgment dated

10.07.2018 passed in C.C.No.33 of 2015 on the file of the Principal Special

Judge under NDPS Act, Chennai, thereby convicted the appellant for the

offence punishable under Section 8(c) read with 20(b) (ii) (B) of NDPS Act.

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Crl.A.No.532 of 2018

2. The case of the prosecution is that on 14.05.2014, when P.W.1 was

in T-9 Pattabiram Police Station, he received a secret information from the

informer, that the accused is selling Ganja in whole sale and retail manner.

Immediately, P.W.1 and his team went to the scene of crime and when they

identified the accused/appellant, she was found in possession of Ganja weighing

1.350 Kgs. After all the formalities, the respondent police has registered the

FIR in Crime No.335 of 2014 for the offence punishable under Section 8(c)

read with 20(b) (ii) (B) of NDPS Act as against the appellant.

3. After completion of investigation, the respondent police filed final

report and the same has been taken cognizance for the offence punishable under

Section 8(c) read with 20(b) (ii) (B) of NDPS Act in C.C.No.33 of 2015 by the

Trial Court.

4. On the side of the prosecution, they examined P.Ws.1 to 5 and

marked Exs.P1 to P12. The prosecution has also produced material objects

1 & 2. No one was examined on the side of the appellant and no documents

were marked by her to disprove the case of the prosecution.

5. On perusal of oral and documentary evidence, the Trial Court found https://www.mhc.tn.gov.in/judis

Crl.A.No.532 of 2018

the appellant guilty for the offence punishable under Section 8(c) read with

20(b) (ii) (B) of NDPS Act and sentenced her to undergo 5 years Rigorous

Imprisonment and also imposed fine of Rs.50,000/-, in default to undergo one

year Rigorous Imprisonment. Aggrieved by the same, the present appeal.

6. The learned counsel appearing for the appellant submitted that the

prosecution has not complied with the mandatory provision as contemplated

under Section 42 of NDPS Act ; the alleged contraband weight was not exactly

shown in the seizure mahazar by the prosecution ; P.W.2 categorically deposed

that the contraband was weighed along with the plastic bag and therefore, the

exact weight was not shown by the prosecution in order to prove the case of the

prosecution. That apart, the prosecution failed to follow the mandatory

provision as contemplated under Section 50 of NDPS Act, while conducting

personal search and seizure and there were so many discrepancies and defects

while weighing the contraband and while taking samples for chemical

examination. Accordingly to the learned counsel for the appellant, without

considering these facts and circumstances, the Trial Court had mechanically

convicted the appellant for the offence punishable under Section 8(c) read with

20(b) (ii) (B) of NDPS Act.

7. The learned Government Advocate (Criminal Side) appearing for the

respondent submitted that in order to bring home the charge, the prosecution https://www.mhc.tn.gov.in/judis

Crl.A.No.532 of 2018

had examined P.Ws.1 to 5. Admittedly, the appellant did not cross examine

P.Ws.1 and 2. Therefore, the presumption arises as contemplated under Section

54 of NDPS Act and the appellant failed to disprove the same by rebuttal

evidence. Therefore, the Trial Court had rightly convicted the appellant and it

does not warrant any interference by this Court.

8. Heard, M/s.L.Srileka, learned counsel appearing for the appellant and

Mr.A.Gopinath, Government Advocate (Criminal Side) appearing for the

respondent and perused the materials available on record.

9. On receipt of secret information, P.W.1 and his team went to the scene

of crime on 14.05.2014 at about 8.40 a.m. and conducted surveillance at about

9.00 a.m., the appellant came to the scene of crime with a white colour

polythene bag. On being identified by the informer, P.W.1 and his team

intercepted her and she being informed about P.W.1's right to search her in the

presence of an authorised Executive Officer and on service of Ex.P2, notice of

search, after following the procedure as contemplated under Section 42 of

NDPS Act, one police constable, who was examined as P.W.2, made search on

the appellant,. On search, the appellant was found in possession of Ganja

weighing 1.350 Kgs. Two samples were taken from the contraband, each https://www.mhc.tn.gov.in/judis

Crl.A.No.532 of 2018

containing 50 grams, for chemical analysis. The remaining contraband

weighing 1.250 Kgs was seized by mahazar, which was marked as Ex.P3 and

produced before the Court below. After preparing arrest memo, the appellant

was arrested and remanded to judicial custody. Thereafter, a report was also

prepared as contemplated under Section 57 of NDPS Act. It was marked as

Ex.P6. Under Form 95, the contraband was deposited and the same was

marked as Ex.P8. FIR was marked as Ex.P9. Thereafter, the respondent

received analysis report, which was marked as Ex.P11 and filed final report.

10. In support of its case, the prosecution examined P.Ws.1 and 2.

P.W.1 categorically deposed that he received secret information from the

informer and accordingly went to the scene of crime and made search by P.W.2.

In fact P.Ws.1 and 2 were not cross examined by the appellant. Therefore, the

appellant failed to rebut the presumption as contemplated under Section 54 of

NDPS Act. Hence, the Trial Court rightly convicted the appellant for the

offence punishable under Section 8(c) read with 20(b) (ii) (B) of NDPS Act.

11. In view of the above, this Court finds no infirmity or illegality in the

conviction rendered by the Principal Special Judge under NDPS Act, Chennai in

C.C.No.33 of 2015 dated 10.07.2018 and the same is confirmed.

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Crl.A.No.532 of 2018

12. At this juncture, the learned counsel for the appellant submitted that

insofar as the sentence imposed is concerned, the petitioner is a very old lady

and she is suffering from age old ailments. Therefore, the sentence may be

reduced.

13. Taking into consideration of the aforesaid submission, the sentence

imposed on the appellant is hereby reduced from 5 years to 2 ½ years.

Accordingly, this Criminal Appeal is partly allowed, by reducing the sentence

alone.

28.10.2022 Index : Yes/No Speaking/Non Speaking order Lpp

To

1. The Principal Special Judge under NDPS Act, Chennai.

2. The Inspector of Police, T-9, Pattabiram Police Station, Chennai.

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Crl.A.No.532 of 2018

3. The Public Prosecutor, High Court, Madras.

G.K.ILANTHIRAIYAN. J,

Lpp

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Crl.A.No.532 of 2018

Crl.A.No.532 of 2018

28.10.2022

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