Madras High Court
Muthukaruppan vs The Inspector Of Police on 6 December, 2023
Crl.A.(MD).Nos.95 and 211 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED 06.12.2023
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
Crl.A.(MD).Nos.95 and 211 of 2017
Muthukaruppan ... Appellant/Accused No.1
in Crl.A.(MD).No.211 of 2017
Kalidoss ... Appellant/Accused No.2
in Crl.A.(MD).No.95 of 2017
Vs.
The Inspector of Police,
Palani Town Police Station,
Dindigul District.
(In Crime Nos 1668 and 1669 of 2002)
... Respondent (In both the cases)
COMMON PRAYER : Criminal Appeals filed under Section 374 of the
Criminal Procedure Code, to call for the records of the learned II Additional
District and Sessions NDPS Court, Madurai, in C.C.No.73 of 2004 and set
aside the judgment and conviction dated 15.11.2016 and acquit the
appellants.
Page 1 of 10
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Crl.A.(MD).Nos.95 and 211 of 2017
For Appellant : Mr.R.Prakash
For Respondent : Mr.E.Antony Sahaya Prabahar
Additional Public Prosecutor
COMMON JUDGMENT
These Criminal Appeals have been filed to set aside the judgment
rendered by the II Additional District and Sessions NDPS Court, Madurai,
in C.C.No.73 of 2004 dated 15.11.2016 and consequently direct to acquit
the appellants.
2.Since the appellants in these appeals are arrayed as accused No.
1 and 2 in the Crime Nos.1668 and 1669 of 2002, these appeals are taken up
together for hearing and disposed of by way of this common judgment.
3.On 21.12.2002 at 06.30 p.m, while the P.Ws.2 and 3 were on
patrolling duty, they suspected the appellants and after compliance of
Section 50 of Narcotic Drug Psychotropic Substances Act, 1985,
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Crl.A.(MD).Nos.95 and 211 of 2017
(hereinafter, for the sake of brevity, referred to as “NDPS Act”), made a
search and seized 5 kgs of Ganja from the each of the appellants.
Thereafter, the samples were taken from the seized contraband and prepared
Athatchi in Ex.Ps.7 and 8 and produced the accused before the investigating
Officer/P.W.4 and registered the case in Crime Nos.1668 and 1669 of 2002.
P.W.4 investigated the case by obtaining chemical analysis report and
examining the witnesses, filed the final report before the trial Court. After
filing the final report, the same was taken on file in C.C.No.73 of 2004 by
the learned II Additional District and Sessions NDPS Court, Madurai.
4.The learned trial Judge after appearance of the accused served
the copies under Section 207 Cr.P.C. Then, he framed necessary charges and
questioned the accused. The accused denied the charges and pleaded not
guilty and stood for trial.
5.To prove the case, the prosecution examined P.W.1 to P.W.4 and
exhibited 9 documents as Ex.P.1 to Ex.P.9 and produced 4 material objects
as M.O.1 to M.O.4. Thereafter, all the accused were questioned under
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Crl.A.(MD).Nos.95 and 211 of 2017
Section 313 Cr.P.C proceedings by putting the incriminating evidence
against them and they denied the same as false and thereafter, the case was
posted for defence evidence. On the side of the appellants no witness was
examined and no documents were marked.
6.After considering the material adduced by the prosecution and
also hearing the argument of the appellants and other accused, the trial
Court convicted the appellants guilty for the offence under Sections 8(C)
r/w 20(b)(ii)(c) of NDPS Act and sentenced them to undergo 3 years
Rigorous Imprisonment each and to pay a fine of Rs.15,000/- each (totally
Rs.30,000/-), in default to undergo six months Simple Imprisonment each.
Aggrieved by the same, the present appeals have been filed.
7.The learned counsel appearing for the appellants submitted that
the mandatory provision of Section 42 of NDPS Act, has not been complied
with by the respondent Police. There was a delay of 36 days in sending the
samples to the Chemical Lab. There was a contradiction between the P.W.3
and P.W.4 regarding the seal on the samples. The learned trial Judge without
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Crl.A.(MD).Nos.95 and 211 of 2017
considering the above circumstances, convicted the appellants. It is the duty
of prosecution to prove the case beyond reasonable doubt. But, in view of
the above material contradiction and the lapse on the part of the
prosecution/investigating agency, the case of the prosecution was not
proved in accordance with law. Hence, he seeks for acquittal in this case.
8. The learned Additional Public Prosecutor appearing for the
respondent Police submitted that in this case, Section 42 of NDPS Act, is
not applicable. Section 43 of NDPS Act, is applicable for the reason that
P.W.1 and P.W.2 were on patrol duty. At that time, they suspected the
appellants and seized the contraband. Hence, Section 42 of NDPS Act, is
not applicable. He further submitted that the contradiction between the
P.Ws.3 and 4 is not material. In the report, it is clearly stated that seal was
intact. He further submitted that the delay in producing the sample to the
chemical lab is not material one. The seized contraband and the samples
were produced along with the accused on the day itself. There was in
ordinate delay in cross examining the witnesses i.e., the occurrence took
place in the year 2002 and the examined the witnesses in the year 2016.
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Crl.A.(MD).Nos.95 and 211 of 2017
9. This Court perused the records and the documents adduced by
the prosecution and the grounds raised by the appellants and reply made by
the learned Additional Public Prosecutor.
10. On 21.12.2002 at 06.30 p.m, while P.W.1 and P.W.2 were on
patrol duty, they suspected the appellants. Thereafter, they made a search
after complying Section 50 of the NDPS Act. At that time, they recovered
the contraband in the gunny bags from the appellants carrying an the heads.
They found that the recovered contraband is Ganja and thereafter, they took
the samples from the each bag. The remaining contraband were sealed
separately. Thereafter, the First Information Reports was registered in Crime
Nos.1668 and 1669 of 2002 and the appellants along with contraband were
produced before the learned Judicial Magistrate on that day itself. Further,
the Athatchi was properly prepared and the same was also produced before
the Court on the same day along with the remand report. Hence, this Court
has no reason to disbelieve the evidence of P.W.1 and P.W.2 relating to the
recovery of the contraband since all the documents were produced along
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Crl.A.(MD).Nos.95 and 211 of 2017
with the accused at the time of remand. Hence, there is no question of any
fabrication of the documents relating to the occurrence. There was no
explanation relating to the above recovery, during the course of the
questioning under Section 313 Cr.P.C. In the said circumstances, the
prosecution clearly proved the recovery of the contraband from the
appellants. In the said circumstances, the prosecution clearly proved the
case beyond reasonable doubt, on the basis of the evidence of P.W.1 and 2
and Ex.P.7 and Ex.P.8. Apart from that, the remaining contraband were
produced before the Court and also the expert gave an opinion regarding the
recovered contraband. In the report, it is stated that the seal was intact and
there was no tampering of the seal. This Court is satisfied that the
prosecution proved the case beyond reasonable doubt as held by the learned
trial Judge.
11. So far as sentence of imprisonment is concerned, the petitioner
had already undergone more than 18 months. It is seen from the records
that they were in prison for two months prior to the trial and the remaining
period after conviction.
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Crl.A.(MD).Nos.95 and 211 of 2017
12. The learned Additional Public Prosecutor, on instructions from
the officer present today, submitted that the appellants are not involved in
any other offence after conviction. Hence, this Court is inclined to reduce
the sentence to the period already undergone by them.
13. In the result, these Criminal Appeals are partly allowed. So
far as sentence is concerned, the sentence imprisonment of the appellants, as
ordered by the Courts below, is reduced to the period already undergone by
them.
06.12.2023
NCC :Yes/No
Index :Yes/No
Internet :Yes/No
vsg
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Crl.A.(MD).Nos.95 and 211 of 2017
To:
1.The learned II Additional District
and Sessions NDPS Court,
Madurai.
2.The Inspector of Police,
Palani Town Police Station,
Dindigul 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.
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Crl.A.(MD).Nos.95 and 211 of 2017
K.K.RAMAKRISHNAN, J.
vsg
Crl.A.(MD).Nos.95 and 211 of 2017
06.12.2023
https://www.mhc.tn.gov.in/judis
