Madras High Court

Murugan vs The State Represented By on 22 June, 2023

                                                                           Crl.A(MD)No.243 of 2016



                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                Date : 22.06.2023

                                                     CORAM:

                           THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

                                            Crl.A.(MD)No.243 of 2016

                     Murugan                                           ... Appellant/A1

                                                     vs.


                     The State Represented by
                     The Inspector of Police,
                     Peraiyur Police Station,
                     Madurai District.
                     In Crime No.17 of 2003                      ...Respondent/Respondent


                     PRAYER : This Criminal Appeal has been filed under Section 374 of
                     Cr.P.C., to call for the records in C.C.No.223 of 2006 relating to the
                     Judgment dated 20.06.2016 passed by the learned II Additional NDPS
                     Act Cases, Madurai and to set aside the Judgment of the conviction on
                     the appellant/A1.

                                     For Appellant     : Mr.S.Muniyandi

                                     For Respondent : Mr.T.Senthilkumar
                                                      Additional Public Prosecutor




https://www.mhc.tn.gov.in/judis
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                                                                                Crl.A(MD)No.243 of 2016



                                                       JUDGMENT

This Criminal Appeal has been preferred as against the Judgment

of Conviction passed in C.C.No.223 of 2006 by the learned II Additional

NDPS Act Cases, Madurai, dated 20.06.2016 and thereby, convicted the

appellant for the offence under Section 8(c) r/w 20(b)(ii)(B) of NDPS

Act.

2. The case of the prosecution is that on 22.03.2003, when the

defacto complainant was working as Inspector of Police in Sedapatti

Police Station, received a secret information that the accused are coming

with Ganja in a motorcycle. Therefore, the respondent and his team went

to the scene of crime and found the second accused along with the

contraband weighing 10 kgs of Ganja. After seeing the police party, the

first accused fled away from the scene of crime leaving a gunny bag. The

gunny bag consisting 15 kgs of Ganja, which was left out by the first

accused. Both the bags were recovered by the respondent by supporting

seizure mahazar and after taking two samples weighing 50 grams each

from the gunny bag, sealed the remaining contraband and thereafter,

registered the FIR in Crime No.17 of 2003 for the offence under Sections

8(c) r/w 20(b)(ii)(B) of NDPS Act. After completion of investigation, the

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Crl.A(MD)No.243 of 2016

respondent police filed a final report and the same has been taken

cognizance by the trial Court in C.C.No.223 of 2006. The second

accused has not appeared before the trial Court and the case has been

split up by the trial Court as against the second accused in C.C.No.154 of

2016. Insofar as the trial in C.C.No.223 of 2006 is concerned, it was

proceeded as against the first accused.

3. In order to prove the charge, the prosecution had examined P.W.

1 to P.W.4 and marked Ex.P.1 to Ex.P.13. The prosecution has produced

material objects as M.O.1 to M.O.6. On the side of the accused, no one

was examined and no documents were marked.

4. On perusal of the oral and documentary evidence, the trial Court

found the appellant guilty for the offence under Section 8(c) r/w 20(b)(ii)

(B) of NDPS Act and sentenced him to undergo 5 years Rigorous

Imprisonment and imposed to pay a fine of Rs.20,000/- in default to

undergo 6 months Simple Imprisonment. Aggrieved by the same, the

present appeal.

5. The learned counsel for the appellant would submit that the

second accused was acquitted by the trial Court by Judgment, dated https://www.mhc.tn.gov.in/judis

Crl.A(MD)No.243 of 2016

30.11.2018. The appellant was convicted by the same trial Court with the

same evidence on record. He would further submit that the respondent

has failed to follow the mandatory provisions under Section 50(1) and

42(2) and 57 of NDPS Act. Even according to the case of the

prosecution, the appellant was fled away from the scene of crime and

even then, there was separate seizure mahazar. If the first accused was in

possession of 15 kgs of Ganja, except confession statement from the

second accused, no other material produced by the prosecution to prove

that the first accused was present in the scene of crime and he was

possessed 15 kgs of Ganja. Further, the seizure mahazar which was

marked as Ex.P.2 and Ex.P.3 did not contain the signature of the second

accused, which was allegedly seized from the second accused. It was

categorically admitted by P.W.1. Even then, the trial Court without

considering those grounds, has mechanically convicted the appellant.

6. Per contra, the learned Additional Public Prosecutor would

submit that in order to bring the charges to prove the prosecution, had

examined P.W.1 to P.W.4 and marked Ex.P1 to Ex.P.13. They also

produced material objects as M.O.1 to M.O.6. The confession statement

of the second accused is very clear that the first accused was also with

him and he was in possession of contraband weighing 15 kgs of Ganja. https://www.mhc.tn.gov.in/judis

Crl.A(MD)No.243 of 2016

After seeing the police party, he fled away from the scene of crime

leaving the contraband with A2. Pursuant to the said confession, there

was recovery of contraband weighing 15 kgs of Ganja. Therefore, the

prosecution has proved the case beyond any doubt and the trial Court has

rightly convicted the appellant and it does not warrant any interference

by this Court.

7. Heard the learned counsel on either side and perused the

materials available on record.

8. Even according to the case of the prosecution, on receipt of

secret information, the respondent and his team went for surveillance

near Chinnakalai's Sugarcane field, Kurukkampatti Village, both the

accused were standing there with two gunny bags of contraband. After

seeing the police party, the first accused, namely, the appellant herein

fled away from the scene of crime after leaving the contraband. The

second accused was found in possession of 10 kgs of Ganja and under

the seizure mahazar Ex.P.2 and Ex.P.3, both the gunny bags were seized

from the second accused. After receipt of secret information, the

respondent ought to have forwarded the same to the Immediate Superior

get necessary permission as contemplated under Section 42(2) of the https://www.mhc.tn.gov.in/judis

Crl.A(MD)No.243 of 2016

NDPS Act. The prosecution has failed to send the information to the

Superior Officer in order to get any permission to conduct raid.

Therefore, this contravention is fatal to the case of the prosecution. On

perusal of Ex.P.2 and Ex.P.3 allegedly seized contraband from the second

accused, they do not contain the signature of the second accused. It

contains the signature of only the respondent and other two constables.

Therefore, the seizure mahazar are concocted one in order to foist a false

case as against the accused persons. The Investigation Officer was

examined as P.W.3 and he categorically deposed that after completion of

registering the FIR, he failed to send report to the higher officials as

contemplated under Section 57 of the NDPS Act. Further, the Police

Officer, who had arrested and recovered the alleged contraband from the

accused was examined as P.W.1. He deposed as follows:

“2k; vjphpaplk; xg;Gjy; thf;F%yk; thq;fpNdhkh

vd;why; Qhgfk; ,y;iy. vy;yh Mtzq;fisAk; ahh;

vOjpdhh;fs; vd;gJ gw;wp vdf;F Qhgfkpy;iy. Nrhjid

rk;kjf; fbjj;jpy; vq;fs; ifnaOj;Jf;F fPo;

Njjp ,y;iy vd;why; rhp jhd;. Nrhjid mwptpg;gpy;

vjphpapd; taJ> kw;Wk; Kfthp Fwpg;gplg;gl;Ls;sJ vd;why;

rhp jhd;. GphpT 50-I rhpahf ifahshky; Nrhjid rk;kjf;

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Crl.A(MD)No.243 of 2016

fbjj;jpid jahh; nra;Js;Nshk; vd;why; rhpay;y. ifJ

eKdhtpy; Neuk; jpUj;jg;gl;Ls;sJ vd;why; rhp jhd;. ifJ

eKdhtpy; fhty; M rhh;G Ma;thsh; vdW vOjp

Ma;thsh; vd;W jpUj;jg;gl;Ls;sJ vd;why; rhpay;y.

Nrhjid rk;kjf; fbjj;jpYk;> ifJ eKdhtpYk;/2tJ

vjphpapd; je;ijapd; ngah; jpUj;jg;gl;Ls;sJ vd;why; rhp

jhd;...”

Therefore, Ex.P.2 and Ex.P.3 cannot be believable one and in fact, it does

not contain the signature of the second accused from whom the

contraband was seized. Further, there was delay in sending the