Madras High Court
Parthipan vs The State Of Tamil Nadu on 26 August, 2025
Crl.A.(MD).Nos.169, 171, 182, 183 and 433 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 27.06.2025
Pronounced On : 26.08.2025
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
Crl.A.(MD).Nos.169, 171, 182, 183 and 433 of 2023
and
Crl.M.P.(MD).No.11151 of 2024
Parthipan ... Appellant /Accused No.3
in Crl.A.(MD).No.169 of 2023
Ganesan ... Appellant / Accused No.2
in Crl.A.(MD).No.171 of 2023
Dineshkumar ... Appellant / Accused No.5
in Crl.A(MD).No.182 of 2023
Selvakumar ... Appellant / Accused No.1
in Crl.A(MD).No.183 of 2023
Dhanush Kodi ... Appellant / Accused No.4
in Crl.A(MD).No.433 of 2023
Vs.
The State of Tamil Nadu,
represented by
The Inspector of Police,
Theni – NIBCID Police Station,
Theni District.
(Crime No.28 of 2021) ... Respondent / Complainant
in all appeals
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PRAYER: Criminal Appeals have been filed under Section 374(2) of the
Criminal Procedure Code, to call for the records in C.C.No.383 of 2021
dated 02.02.2023 on the file of the learned Principal Special Court for
EC and NDPS Act Cases, Madurai and set aside the same.
For Appellant : Mr.M.Pitchai Muthu,
Advocate
in Crl.A.(MD).Nos.169, 171, 182
and 183 of 2023
Mr.KR.Bharathi Kannan,
Advocate
in Crl.A.(MD).No.433 of 2023
For Respondent : Mr.R.Meenakshi Sundaram
Additional Public Prosecutor
in all appeals
COMMON JUDGEMENT
Since these criminal appeals are arising out of the same crime,
these appeals are taken up for hearing together and disposed of by way of
this common judgment.
2.The appellants are said `to have committed the offences under
Sections 8(c) r/w 20(b)(ii)(C), 25 and 29(1) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS
Act') for the alleged possession of 52 kg of Ganja. The learned Principal
Special Court for EC and NDPS Act Cases, Madurai convicted the
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appellants in C.C.No.383 of 2021 under Sections 8(c) r/w 20(b)(ii)(C),
25 and 29(1) of NDPS Act, 1985 by its judgment dated 02.02.2023 and
sentenced them to undergo 10 years Rigorous Imprisonment and to pay
a fine of Rs.1,00,000/- each, in default to undergo 6 months Simple
Imprisonment each. Challenging the same, the appellants have filed
these criminal appeals.
3.Brief facts necessary for disposal of this appeal, are as
follows:
3.1. According to the prosecution, P.W.4 received secret
information on 20.01.2021 at about 11.45 hours regarding the illegal
transport of a huge quantity of ganja. He reduced the information into
writing and submitted it to his higher official. Thereafter, along with the
P.W.4, and the informer, had proceeded to the place of occurrence. The
informer identified two two-wheelers, and P.W.4, along with his team,
apprehended the accused. Upon following the procedure under Section
50 of the NDPS Act, they recovered two gunny bags from A1 to A6, one
weighing 30 kg and the other 22 kgs. After properly drawing samples and
sealing the samples, the remaining contraband, along with the two two-
wheelers, were taken to the police station and handed over to P.W.5. P.W.
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5 registered a case in Crime No.37 of 2021 under Sections 8(c) read with
20(b)(ii)(C), 25, and 29(1) of the NDPS Act, 1985. Thereafter, the
accused, along with the contraband, were remanded and produced before
the learned jurisdictional Magistrate. Subsequently, the investigation was
transferred to P.W.6 and later to P.W.7, as per the orders of the ADGP.
Thereafter, P.W.7 continued the investigation and filed the final report
against all the accused under Sections 8(c) read with 20(b)(ii)(C), 25, and
29(1) of the NDPS Act, 1985.
3.2. The learned Trial Judge, on perusal of records and on hearing
both sides and being satisfied that there existed a prima facie case
against the accused/appellants, framed charges under Sections 8(c) r/w
20(b)(ii)(c), 25 and 29(1) of the NDPS Act 1985 and the same was read
over and explained to them and on being questioned, the
accused/appellants denied the charges and pleaded not guilty and stood
trial.
3.3.The prosecution, in order to prove its case, had examined 7
witnesses as P.W.1 to P.W.7 and exhibited 26 documents as Ex.P.1 to
Ex.P.26 and marked 4 material objects as P.M.O.1 to P.M.O.4.
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4.The learned Trial Judge, considering the materials and
circumstances found that accused No.1 to 5 in C.C.No.383 of 2021 were
guilty and passed the conviction and sentence against the appellants as
stated above. The same was challenged by the appellants by filing these
appeals before this Court.
5.The learned counsel appearing for the appellants made the
following submission:
5.1.The learned counsel for the appellants would submit that there
was no compliance of Section 42 of the NDPS Act and that there exists a
material contradiction between the evidence of P.W.5, P.W.1, P.W.3, and
P.W.4 with respect to the recording and acknowledgment of information.
Therefore, the version regarding the recording of information stated by
P.W.1 and P.W.6 is unreliable, and consequently, there was no proper
compliance of Section 42 of the NDPS Act. Hence, he seeks acquittal.
5.2. It is further submitted that though the final report was filed
against six accused persons, only five of them were convicted while one
(A6) was acquitted. The learned counsel contends that, as the same
evidence was adduced against all the accused, convicting A1 to A5 while
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acquitting A6 on the same set of evidence is impermissible. The learned
counsel also submits that there was inordinate delay of 19 days in
producing the contraband before the learned Special Judge. He further
points out that the two-wheeler was parked at a distance of about 5 feet
from the place of occurrence, where the accused were standing and
apprehended, and therefore, there was no conscious possession. It is also
contended that the ownership of the property was not proved.
Accordingly, the learned counsel prays for setting aside the conviction
and acquit the appellants.
5.3. The prosecution was not able to produce any material to prove
the exact time and other factor, regarding receipt of secret information. In
the said circumstances, there was no strict compliance of Section 42 of
NDPS Act,1985.
5.4.The contraband was belatedly produced before the Court
without any explanation.
5.5.There was no examination of independent witnesses.
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5.6.The trial Court failed to consider the factual contradictions and
the discrepancies regarding the compliance of Section 42 of the NDPS
Act, 1985, preparation of seizure mahazar and the place of occurrence.
5.7. Further, the respondent, failed to establish the ownership of
the vehicle used by the accused; the real owner of the vehicle was not at
all identified. Therefore, the trial Court did not frame the charge for the
offence under Section 25 of the NPDS Act, 1985, whereas the trial Court
believed the prosecution theory of the appellants had driven the vehicle,
which was not at all supported by documentary evidence. How the
vehicle came into the possession of accused persons was not at all
explained; it remains unanswered. Therefore, he seeks for acquittal.
6.The learned Additional Public Prosecutor made the following
submissions:-
6.1. P.W.1, P.W.3, and P.W.4 have clearly deposed about the
recovery of the contraband from the appellants. Their evidence is cogent
and trustworthy, and the conviction and sentence imposed against the
appellants are legally valid. P.W.4 has categorically deposed about the
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receipt of the information, its recording in the general diary, and
thereafter reducing it into writing, forwarding the same to P.W.5, and
obtaining the necessary permission. Therefore, there was clear-cut
compliance of the mandate of Section 42 of the NDPS Act. Ex.P17 also
clearly establishes such compliance. Hence, the contention of the learned
counsel for the appellants that there was non-compliance with reference
to Section 42 is misconceived, and the appeal deserves to be dismissed.
6.2. The recovery was effected on the basis of a joint confession
made by five of the accused, and the further disclosure regarding the two
bags of ganja was duly proved. Therefore, their conscious possession
stands established. The acquittal of A6 is not a ground to acquit A1 to
A5, particularly when the evidence against them is cogent and
trustworthy. The doctrine of parity has no application in the present case.
It is further submitted that the contraband was not recovered from the
two-wheeler; rather, the accused were found standing near the two-
wheeler, and upon being apprehended, they disclosed the place where the
contraband was kept. Therefore, conscious possession has been clearly
proved.
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6.3. He would further submit that, regarding the receipt of the
information, minor and immaterial contradictions have occurred, which
do not affect the root of the prosecution case. In the absence of any
explanation from the accused regarding their presence with a huge
quantity of ganja, the presumption under Sections 54 and 35 of the NDPS
Act operates against them. Hence, the submissions of the learned counsel
for the appellants are liable to be rejected.
6.4. Therefore, he seeks for confirmation of the conviction and
sentence passed by the learned trial Judge.
7.This Court considered the rival submissions made by the learned
counsel appearing for the appellants and the learned Additional Public
Prosecutor appearing for the respondent and perused the materials
available on record and the precedents relied upon by them.
8.The point for determination in these appeals is whether the
conviction and sentence imposed on the appellants under Sections 8(c)
read with 20(b)(ii)(C), 25, and 29(1) of the NDPS Act, after the acquittal
of A6, is legally sustainable?
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9.Discussion on compliance under Section 42 of the NDPS Act:-
9.1. P.W.4 received the secret information on 20.01.2021 at about
11.45 hours, about the illegal possession of the contraband by the
appellants. P.W.4 reduced the said information in writing after making
entry in the General Diary. He also sent the information to the Immediate
Superior, namely, P.W.5. P.W.5 also acknowledged the same by making
his signature and granted permission to conduct raid. The said
document was marked under Ex.P.17. The same reached the Court on
the date of the recovery itself. Apart from that, the document was
produced on the date of remand itself. There was no dispute over the
said document. P.W.4 and P.W.5 clearly deposed about the above facts in
a cogent manner and they also deposed about the acknowledgement of
the information. Therefore, the contention of the learned counsel for the
appellant that there is non-compliance of Section 42 of the Act, is
misconceived and the same is against the facts. In this aspect, the
prosecution clearly proved the compliance under Section 42 of the Act.
9.2.The learned counsel for the appellant would submit that the
prosecution case itself is that the searching officer received the secret
information and he did the search, recovery and arrest. The learned trial
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Judge is not correct in holding that the Section 42 of the Act, is not
applicable without considering the plea of the accused that the non-
compliance of the mandatory procedure under Section 42 of the Act is
fatal as per the principle laid down by the Hon’ble Constitution Bench of
Supreme Court in Karnail Singh Vs, State of Haryana reported in
(2009) 3 SCC (Crl.) 887.
9.3. It is true that the learned trial Judge upon consideration of the
judgment of the Hon’ble three Judge Bench of the Hon’ble Supreme
Court in SK.Raju Alias Abdul Haque Alias Jagga Vs, State of West
Bengal reported in (2018) 9 SCC 708 has held that the search was made
in the public place and therefore, Section 43 of the Act alone is attracted
and necessity to comply with the requirement under Section 42 will not
arise.
9.4.The learned counsel for the appellant would submit that the
Hon’ble Supreme Court in the S.K.Raju case on facts has held that
Section 43 of the Act alone is applicable. In the S.K.Raju case, even
though information was received prior to the search and recovery of
contraband from the accused, the information received was ‘when he was
walking along the Picnic Garden Road in front of Falguni Club’, and
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according to the Hon’ble Supreme Court, it was not a building,
conveyance or enclosed place. Further according to the Hon’ble Supreme
Court, the said recovery was made in the public place, which was
accessible to the public and fell within the ambit of the phrase of the
public place in the explanation to Section 43 of the Act. Therefore, the
Hon’ble Supreme Court has held that Section 42 of the Act had no
application. Further, according to the learned counsel for the appellant,
the Hon’ble Constitution Bench judgment ‘Karnail Singh’ was not
placed. Therefore, the learned counsel for the appellant by relying the
Hon’ble judgment of Supreme Court in Dr.Shah Faesal and Others Vs.
Union of India and Another Court reported in 2020 4 SCC 1 would
submit that the ratio decidendi in S.K.Raju case is contrary to the dictum
of larger bench and the same is not binding or otherwise the observation
of the S.K.Raju case in para 12 of the judgment reported in 2018 9 SCC
708 is only obiter dictum and therefore, he would submit that the non-
compliance of Section 42 of the Act would vitiate the entire proceedings.
Therefore, he seeks for acquittal. He also fairly placed the following
judgments of the Hon’ble Supreme Court decided for and against him.
i) State of Punjab Vs. Balbir Singh reported in (1994) 3 SCC 299
ii) State of Pinjab Vs, Baldev Singh reported in (1999) 6 SCC 172
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iii) State of Haryana Vs. Jarnail Singh and Others reported in (2004) 5
SCC 188
iv) Karnail Singh Vs, State of Haryana reported in (2009) 3 SCC (Cri)
887
v) Sukhdev Singh Vs, State of Haryana reported in(2013) 2 SCC 212
vi) State of Rajasthan Vs, Jagraj Singh @ Hansa reported in (2016) 11
SCC 687
vii) Mukesh Singh Vs, State (Narcotic Branch of Delhi reported in
(2020) 10 SCC 120
viii) Boota Singh and Others Vs. State of Haryand reported in (2021)
19 SCC 606
ix) Najmunisha Vs. State of Gujarat and Another reported in 2024(1)
MWN (Cr.) 481 (SC)
x) Darshan Singh Vs, State of Haryana reported in 2016 (14) SCC 358
9.5.Section 41(1) of the NDPS Act empowers the jurisdictional
learned Judicial Magistrate to issue warrant for arrest of person or for the
search of any building, conveyance or place for the searching officers,
who come under the purview of the NDPS Act, who have reason to
believe any narcotic drugs or psychotropic substance or controlled
substance is illegally acquired or concealed.
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9.6.Section 41(2) of the Act empowers the searching officer, who
have received the information to search and arrest for the illegal
possession, concealment, transportation as mentioned in the NDPS Act
relating to the narcotic drugs or psychotropic substance or controlled
substance.
9.7.Section 42 of the Act following Section 41 of the Act mandates
to follow certain procedures in the case of the arrest and seizure on the
basis of the information. The object of the procedure enumerated under
Section 42 of the Act either to arrest or search the person and recover the
contraband is to safeguard the constitutional right envisaged in the
constitution of India for the reason that the same can be made without
obtaining the warrant from the Court.
9.8.As per the Section 42 of the Act, if empowered officer has
received the secret information about the illegal possession,
transportation of narcotic drugs or psychotropic substance or controlled
substance the empowered officer is duty bound to reduce the said
information in writing and shall send the same to his immediate superior
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within 72 hours. The Hon’ble Constitution Bench of the Supreme Court
in the case of Karnail Singh v. State of Haryana, reported in (2009) 8
SCC 539 has considered the said requirement and laid the following
guidelines:-
35.In conclusion, what is to be noticed is
thatAbdul Rashid [(2000) 2 SCC 513 : 2000 SCC (Cri)
496] did not require literal compliance with the
requirements of Sections 42(1) and 42(2) nor did Sajan
Abraham [(2001) 6 SCC 692 : 2001 SCC (Cri)
1217] hold that the requirements of Sections 42(1) and
42(2) need not be fulfilled at all. The effect of the two
decisions was as follows:
(a) The officer on receiving the information [of
the nature referred to in sub-section (1) of Section 42]
from any person had to record it in writing in the
register concerned and forthwith send a copy to his
immediate official superior, before proceeding to take
action in terms of clauses (a) to (d) of Section 42(1).
(b) But if the information was received when the
officer was not in the police station, but while he was
on the move either on patrol duty or otherwise, either
by mobile phone, or other means, and the information
calls for immediate action and any delay would have
resulted in the goods or evidence being removed or
destroyed, it would not be feasible or practical to take
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down in writing the information given to him, in such a
situation, he could take action as per clauses (a) to (d)
of Section 42(1) and thereafter, as soon as it is
practical, record the information in writing and
forthwith inform the same to the official superior.
(c) In other words, the compliance with the
requirements of Sections 42(1) and 42(2) in regard to
writing down the information received and sending a
copy thereof to the superior officer, should
normally precede the entry, search and seizure by the
officer. But in special circumstances involving
emergent situations, the recording of the information
in writing and sending a copy thereof to the official
superior may get postponed by a reasonable period,
that is, after the search, entry and seizure. The
question is one of urgency and expediency.
(d) While total non-compliance with
requirements of sub-sections (1) and (2) of Section 42
is impermissible, delayed compliance with satisfactory
explanation about the delay will be acceptable
compliance with Section 42. To illustrate, if any delay
may result in the accused escaping or the goods or
evidence being destroyed or removed, not recording in
writing the information received, before initiating
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action, or non-sending of a copy of such information to
the official superior forthwith, may not be treated as
violation of Section 42. But if the information was
received when the police officer was in the police
station with sufficient time to take action, and if the
police officer fails to record in writing the information
received, or fails to send a copy thereof, to the official
superior, then it will be a suspicious circumstance
being a clear violation of Section 42 of the Act.
Similarly, where the police officer does not record the
information at all, and does not inform the official
superior at all, then also it will be a clear violation of
Section 42 of the Act. Whether there is adequate or
substantial compliance with Section 42 or not is a
question of fact to be decided in each case. The above
position got strengthened with the amendment to
Section 42 by Act 9 of 2001.”
9.9.From the above, it is clear that when the officer received the
secret information and proceeded to make search, recovery and arrest the
accused along with contraband, it is the duty of the officer to comply the
requirement of Section 42 of the Act as per the above guidelines.
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9.10. From the reading of Section 43 of the Act, it is clear that
when the officers by chance make recovery while on patrol duty, they
need not comply the requirement of Section 42 of the Act. Sections 42
and 43 of the Act are incorporated in the Act to meet out the different
situations. Section 43 of the Act authorised empowered officer mentioned
in Section 42 of the Act to search and seize the contraband in any public
place namely, any public conveyance, hotel, shop, or other place intended
for use by, or accessible to the public or in transit, without warrant in the
case of their reason to believe that the narcotic drugs or psychotropic
substance or controlled substance, had been possessed, transported,
concealed etc., They had not acted on the basis of the earlier information.
But, in the case of the Section 42, the search officers acted on the basis of
the receipt of the earlier information about the illegal possession,
transportation, concealment of the contraband. In short, Section 43 of the
Act, is to meet the emergent situation of chance recovery. Therefore,
legislature has made clear about terms of the Sections 42 and 43 of the
Act. The Hon’ble Constitution Bench also reiterated the said requirement
of Section 42 in the case of Karnail Singh. Therefore, the finding of the
learned trial Judge that Section 43 is applicable to the present case is not
correct. But, this Court by exercising its power under Section 386
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Cr.P.C., makes an effort to consider the plea of the learned counsel for the
appellant whether there is mandatory requirement of the compliance of
Section 42 of the Act, on the basis of the available evidence in this case.
9.11. In this case, P.W.4 received the secret information about the
illegal possession and transporation of the contraband, and he reduced
the same in writing. He reported the said information to his Immediate
Superior. The Immediate Superior also acknowledged the same. To prove
the same, the prosecution produced Ex.P.17. From the perusal of Ex.P.17
and appreciation of evidence of P.W.4, this Court finds the compliance of
mandatory requirements of Section 42 of the Act. The learned counsel for
the appellant heavily relied on the discrepancies relating to the recording
of information and reducing in writing and reporting the said information
reduced in writing to his superior officer to disbelieve the case of the
prosecution about the compliance of the procedure stated in Section 42
of the Act. The learned counsel for the appellant also submitted that the
Immediate Superior officer who is said to have received the information
has not deposed about the receipt of the information from the searching
officer. Even in some cases, said Immediate Superiors also are not
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examined. In all cases, there is some discrepancy between the evidence
of the Immediate Superior and the search officer relating to the
compliance of Section 42 of the Act. This Court finds no material
discrepancies which would affect the evidence of the witnesses and the
official witnesses in this aspect. When the document Ex.P17 is produced
and marked without objection and the same was proved through the
examination of author of the document and the signature of the officer
found in the document is not disputed and the same reached to the Court
within reasonable time, the non-examination of the Immediate Superior
to depose about the said document is not a material circumstance to
disbelieve the case of the compliance of Section 42 of the Act. When the
Immediate Superior officer comes into the box and deposes about the
receipt of the information, there is no further requirement about the
compliance of Section 42 of the Act. The minor discrepancies in the
evidence of the ‘Immediate Superior’ and the ‘Searching Officer’ when it
has not affected the prosecution case of receipt of information are not
grounds to disbelieve the compliance. Further, the Hon’ble Supreme
Court reiterated the principle that unless the discrepancies go to the root
of the prosecution version, the same is not a ground to disbelieve the
testimony of the witness. Apart from that, most of the witnesses are the
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police officers and examination is conducted after a lapse of several
months and we cannot expect them to keep everything vivid in their
memory. Each witness would depose in his own way on his perception of
the occurrence. One may say ‘a’ the other may say ‘A’. Therefore, sitting
in the armchair, this Court cannot expect the witness to depose before the
Court with photographic memory. Therefore, this Court finds that the
prosecution clearly established the strict compliance of Section 42 of the
Act. Therefore, this Court is not inclined to accept the argument of
learned counsel for the appellant that the prosecution has not complied
with the requirement of Section 42 of the Act.
10.Proof of consious possession:
10.1. All the accused jointly disclosed about the possession of two
bags of ganja, which were recovered by P.W.4 along with the other
officials. P.W.4 has clearly deposed about the disclosure of the said two
gunny bags by A1 to A5, and his testimony is corroborated by the
evidence of P.W.1. The athatchi was also marked in evidence, and the
witnesses were subjected to incisive cross-examination by the defence
counsel regarding the said ganja. The athatchi contains the signatures of
the accused which have not been disputed. Therefore, from the athatchi
(Ex.P9) the conscious possession of the accused stands clearly proved.
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11.Delay in producing the contraband:
11.1. The learned counsel for the appellants submitted that the
delay in producing the contraband before the Special Court is fatal to the
prosecution. It is true that there was a delay of 19 days in producing the
contraband before the Special Court. However, this delay is not material
in the present case, as the contraband was initially produced on
20.01.2021 before the learned Judicial Magistrate, along with the
accused, at the time of remand. All the contraband had been duly sealed
in bags and were later produced before the Special Court. At the time of
recovery, the entire nation was under going the ordeal of COVID-19
restrictions, which justifies the delay in production before the Special
Court. This delay, by itself, is not a ground to disbelieve the evidence of
the recovery witnesses.
11.2. Once the material was produced before the learned Judicial
Magistrate and its identity was affirmed, this Court is unable to accept
the contention of the learned counsel for the appellants regarding the
delay. In similar circumstances, the Hon’ble Supreme Court in Union of
India v. Mohanlal, (2016) 3 SCC 379, has held that delay in producing
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seized contraband before the Court may be a ground to doubt the
prosecution case only where the seizure itself is doubtful. In the present
case, as discussed above, the seizure of the contraband has been proved
beyond all reasonable doubt, and no specific reason has been attributed
against P.W.4 for registering a false case against the accused persons. The
learned Trial Judge has therefore rightly held that the delay of 19 days in
this case is not a material circumstance.
12.Discussion on the proof of ownership of the vehicle:
12.1.The Hon'ble Supreme Court in the case of Rizwan Khan Vs.
State of Chattisgarh has held as follows;
"30. Now as far as the submission on behalf of the
accused that the ownership of the motor cycle (vehicle) has
not been established and proved and/or that the vehicle has
not been recovered is concerned, it is required to be noted
that in the present case the appellant and other accused
persons were found on the spot with the contraband articles
in the vehicle. To prove the case under the NDPS Act, the
ownership of the vehicle is not required to be established
and proved. It is enough to establish and prove that the
contraband articles were found from the accused from the
vehicle purchased by the accused. Ownership of the vehicle
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is immaterial. What is required to be established and proved
is the recovery of the contraband articles and the
commission of an offence under the NDPS Act? Therefore,
merely because of the ownership of the vehicle is not
established and proved and /or the vehicle is not recovered
subsequently, trial is not vitiated, while the prosecution has
been successful in proving and establishing the recovery of
the contraband articles from the accused on the spot".
12.2 Therefore this court declines to accept the argument of the
learned counsel for the appellant that without proof of the ownership of
the vehicle conviction under section 25 of NDPS Act is not maintainable.
Once the prosecution has been successful in proving and establishing the
recovery of contraband from the accused on the occurrence place, police
need not establish ownership of the vehicle.
13. The evidence also shows that the two-wheeler, the accused,
and the contraband were found in the same locality, and the recovery was
made after the accused were nabbed along with the two-wheeler. The
presence of the accused along with the two-wheeler have been clearly
spoken to by P.W.1 and P.W.2. Therefore, the argument of the learned
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counsel for the appellants that the contraband was not recovered from the
two-wheeler is not a circumstance to disbelieve the recovery of the
contraband. In view of the above findings, this Court finds no merit in
the appeal, and the same deserves to be dismissed.
14. The learned counsel for the appellants made the detailed
submission that the recovered contraband was without flowering tops.
Therefore, the case does not come under the category of the commercial
quantity. Therefore, this Court decided to hear the arguments in details on
27.06.2025 and the said proceedings are extracted hereunder:-
“ When the matter taken up for hearing on 06.06.2025,
this Court passed the following order :-
“The case is posted to clarify whether the
contraband without 'flowering tops' would come
under the definition of ganja under Section 2(iii)(b) of
NDPS Act under the caption 'for clarification'.
2.The learned Additional Public Prosecutor
would submit that the above aspect is question of fact
and law and the same has not been raised before the
trial Court, But, on going through the records, he
fairly submitted that the prosecution documents have
nssot revealed about the reference of 'flowering tops'.
But, there is reference that the recovered contraband
was found with “fjph;fSld; $ba
rpwpa ,iyfs;” and the said description denotes
flowering tops and he seeks time to address the issue
in detail.
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3.The said issue has its own significance and
any decision is likely to have its impact on the
pending huge number of cases in Tamil Nadu.
Therefore, this Court inclines to give time to address
the issue in order to provide opportunity to the
learned Additional Public Prosecutor.
4.Accordingly, the case is adjourned to
27.06.2025 finally. The learned Additional Public
Prosecutor is hereby directed to get instruction in
addition to the argument on the above legal aspects:-
1. Date of the arrest of each accused and their
period of incarceration.
2.Relevant portion of the recovery mahazar
and the chemical analysis report.
4.It is open to the learned Additional Public
Prosecutor to get expert's opinion about the
percentage of the offending Narcotic Drug namely,
'TNC' in the recovered contraband.
5.Post the matter finally on 27.06.2025.”
2. In continuation of hearing dated 06.06.2025, this
case is taken up for hearing today and this Court asked about
the consent of the learned counsel for the appellants and the
learned Additional Public Prosecutor to continue the
rehearing as per decision of the Hon'ble Supreme Court of
India in the case of Anil Rai Vs State of Bihar reported in
(2001) 7 SCC 318, on the legal issue whether the contraband
without flowering tops would come under the definition of
ganja under Section 2(iii)(b) of NDPS Act and they have
consented to hear the appeal further. After getting their
willingness, this Court heard the learned Additional Public
Prosecutor and the learned counsel for the appellant.
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3. The learned Additional Public Prosecutor made a
detailed submission by producing the “manual for use by the
National Drug Analysis Laboratories” and producing the
judgment of Hon'ble Supreme Court reported in 2009 2 SCC
26, and the judgment of this Court reported in CDJ 2010 MHC
2446 (Ramesh Case) and unreported judgment of this Court in
Crl.OP(MD)No.18999 of 2024 that there was no reference
about either flowering or fruiting tops. But, there is
mentioning of 'fjph;fs;' and therefore, the same includes
flowering and fruiting tops. Hence, the learned Additional
Public Prosecutor submitted that the recovered ganja with
leaves, seeds, 'fjph;fs;' would come under the definition of
ganja. He also submitted that as per Section 2(iii)(c) of NDPS
Act, “any mixture other than the flowering tops also would
come under the definition of ganja”.
4. The learned counsel for the appellants also cited the
various Hon'ble High Courts and this Court and seeks this
Court to hold that from the recovered ganja, the luxuriant
leaves, stalk, seeds have to be excluded and conviction under
Section 20(b)(ii)(C) of NDPS Act may be converted into
conviction under Section 20(b)(ii)(B) of NDPS Act and seeks
to reduce the sentence of imprisonment.
5. After hearing the learned counsel appearing for both
side at length, this Court reserved the matters for judgment.”
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15. This Court has perused the cross-examination with regard to
the Section 57 report and the chemical analysis report. It is true that, in
the chemical analysis report, there is no specific mention of the flowering
and fruiting tops. However, the report clearly discloses the presence of
cannabinoids. Even if the ganja was recovered along with leaves, seeds,
and stems, as suggested by the learned counsel for the appellants,
weighing the flowering tops, fruiting parts, and other materials separately
would not make any material difference, since the recovered contraband
weighs more than 30 kg, which is well above the commercial quantity
fixed under the NDPS Act, i.e., 20 kg.
16. Further, there is no evidence on record from the side of the
accused to show that the contraband was separated from the leaves or
other parts so as to bring its weight below the commercial quantity. Only
if the weight of the recovered contraband was between 20 kg and 25 kg
the argument of the learned counsel for the appellants could be
considered. In the present case, as the recovered contraband weighs more
than 25 kg, this Court is not inclined to accept the contention that the
case falls below the commercial quantity.
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17.Conclusion:-
From the evidence, it is apparent that P.W.4 received secret
information and the said secret information received was duly reduced in
writing and forwarded to the immediate Superior and on his instruction
i.e., “Received and take action as per law”, the team has proceeded to
the spot mentioned in the information and thereafter, search, seizure and
arrest had been done. Samples were duly drawn and packed with seals
and the remaining contraband was also duly packed separately. The
recovered contraband of 52 kgs of Ganja is more than the commercial
quantity i.e., 20 Kg. The said samples were subjected to analysis and the
Report confirmed the presence of “cannabis”.
17.1. The entire seized contraband namely recovered Ganja was
produced before the Court and marked without any objection as M.O.1 to
M.O.4. The prosecution witnesses viz., P.W.1 to P.W.7, deposed before
the Court in a cogent manner and their evidence is trustworthy and this
Court finds no infirmities in their evidence either to disbelieve or discard
the prosecution case that the appellants transported 52 kgs of Ganja and
the same was in their conscious possession. The appellants never said
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anything in their 313 Cr.P.C questioning nor produced any evidence to
disprove the case of the prosecution in compliance with terms of Sections
54 and 35 of the NDPS Act. Therefore, the prosecution has clearly
proved their case beyond reasonable doubt and the accused never
dispelled the presumption as required under Section 35 of the NDPS Act
and this Court does not find any infirmities in the judgment of the trial
Court. Thus, the question is answered against the appellants. Therefore,
all the appeals deserve to be dismissed.
18. In the result,
(i) The Criminal Appeals are dismissed and the judgment passed
by the learned Principal Special Court for EC and NDPS Act Cases,
Madurai in C.C.No.383 of 2021 dated 02.02.2023 is hereby confirmed.
(ii) The bail bond executed by the appellants are hereby cancelled.
(iii) The learned trial Judge is hereby directed to take steps to
secure the accused and confine them in prison to undergo their remaining
period of imprisonment.
Consequently, the connected miscellaneous petition stands
dismissed.
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19. Summary of Discussion:
Finding Paragraph
Nos.
Brief facts 3-3.3
Submission of the learned Counsel for the 5-5.7
appellants
Submission of the learned APP 6-6.4
Discussion on compliance under Section 42 of the 9-9.11
Act
Proof of concious possession 10-10.1
Delay in producing the contraband 11-11.2
Discussion on the proof of ownership of the vehicle 12-12.1
Conclusion 17-17.1
Result 18
26.08.2025
NCC : Yes/No
Index : Yes/No
Internet : Yes/No
pal
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Crl.A.(MD).Nos.169, 171, 182, 183 and 433 of 2023
To
1.The learned Special Judge,
Principal Special Court for EC and NDPS Act Cases,
Madurai.
2.The Inspector of Police,
Theni – NIBCID Police Station,
Theni District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
4. The Section Officer,
Criminal Records,
Madurai Bench of Madras High Court,
Madurai.
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K.K.RAMAKRISHNAN, J.
pal
Pre-delivery order made in
Crl.A.(MD).Nos.169, 171, 182, 183 and 433 of 2023
26.08.2025
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