Madras High Court
Ajay vs The State Of Tamil Nadu on 26 August, 2025
Crl.A(MD)No.714 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26.08.2025
CORAM:
THE HON'BLE Dr. JUSTICE R.N.MANJULA
Crl.A(MD)No.714 of 2025
and Crl.M.P(MD) No.8353 of 2025
Ajay
... Appellant
Vs
The State of Tamil Nadu,
Rep by the Inspector of Police,
Koodal Pudur Police Station,
Madurai City.
Crime No. 265/2022.
... Respondent
Prayer: This Criminal Appeal Case filed under Section 374 of Cr.P.C to
call for records in CC No.1165 of 2022, dated 29.05.2025 on the file of
the learned I Additional Special Court for NDPS Act Cases, Madurai and
set aside the same.
For Appellant : Mr.M.Jegadeesh Pandian
For Respondent :Mr.R.Meenakshi Sundaram
Additional Public Prosecutor
1/11
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Crl.A(MD)No.714 of 2025
JUDGMENT
When the matter was listed on 18.08.2025, this Court passed
the following order:
“The present appeal has been filed challenging the
Judgment of the learned I Additional Special Court for NDPS
Act Cases, Madurai, dated 29.05.2025 made in CC No.1165
of 2022.
2.The appellant is the second accused, who has been
charged for the offences under Sections 8(c) r/w 20(b)(ii)(B),
25, 29(1) of NDPS Act. After conclusion of trial, he was found
guilty for the offences punishable under Sections 8(c) r/w
20(b)(ii)(B), 29(1) of NDPS Act and convicted and sentenced
to undergo four months rigorous imprisonment and also to
pay a fine of Rs.4,000/-, in default, to undergo one month
simple imprisonment.
3.Aggrieved over that, the appellant/A2 has preferred
this appeal.
4.As per the case of the prosecution, on 11.07.2022, at
about 7.45 hours at Madurai, near Koodal Pudur bus stop,
the accused No.1 and 2 were found coming in a two wheeler
bearing Registration No.TN-64-V-3366 “Honda DIO” with
big shopper bag, in which, they were carrying 1.500 kgs of
ganja and they had a sum of Rs.1,000/- being the amount
derived from the sale of ganja, without licence and permit.
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5.The learned counsel for the appellant submits that
the procedural mandates have not been complied. When a
bodily search was done against each of the accused, a joint
consent letter cannot be accepted. Photographs of the
contraband, which are alleged to have been recovered from
the vehicle, have not been taken. As against the vehicle,
action taken under Section 25 of the NDPS Act ended in
releasing the vehicle. The recovered contraband was not
produced before the Court in time, but only after several days.
The delay in production of the contraband was also not
explained properly.
6. Per contra, the learned Additional Public Prosecutor
submitted that based on the information received by PW2, he
went to the place of occurrence, where the two wheeler
containing contraband was driven by A1 and also recovery of
contraband weighing 1.500kgs was seized from him. The
appellant/A2 who accompanied A1, as a pillion rider. As per
section 35 of NDPS Act culpable mental state of the accused
shall be presumed by the Court and it is for the accused to
rebut the same. But the appellant has not disproved his guilt
by establishing that he did not have the knowledge that the
vehicle, in which, he had travelled was used for smuggling the
contraband. It is further submitted that as per Section 54 of
NDPS Act, unless the contrary is proved, the possession of
contraband may be presumed as illicit article, which has been
possessed with a criminal intention. For the purpose of
rebutting the initial presumption under Sections 35 and 54 of
the Act, heavy burden is on the accused to prove the fact that
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he did not have the knowledge that the contraband is being
smuggled in the vehicle, beyond reasonable doubt.
7. I have given my anxious consideration to the
submissions made on either side and carefully perused the
records.
8.On perusal of the evidence of P.W.2, who is the Sub
Inspector of Police, it is seen that he is aware of the delay
that was being caused in producing the contraband to the
Court and he has admitted that the contraband was not
produced before the Court till 04.08.2022, though it was
recovered on 11.07.2022. No documents have been produced
to show how the safety of the contraband was ensured, while
it was in the custody of the Police. On perusal of the
judgment, it is also seen that the learned Trial Judge has not
dealt with the above point including the joint consent obtained
from both the accused.
9.On perusal of records, it is seen that no confession
has been recorded from the appellant. Not in all cases, the
confession can be recorded unless the person, who gives the
confession has expressed his willingness to do so. If the
accused does not come forward to give the confession, getting
confession from the accused is impossible. Having not chosen
to give the confession, the accused cannot turn around and
argue before the appellate Court that the confession was not
recorded from the accused. The search consent letter, Ex.P.1
would show that it was inclusive of both the accused.
10.Unless the accused disprove the initial presumption
that the possession of the contraband was conscious, based on
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the available evidence available on record, the Court has no
other option except to conclude that the offence against the
accused is proved conclusively. In this regard, it is
appropriate to refer the Judgment of Hon'ble Supreme Court
in Rakesh Kumar Vs State of Madhya Pradesh, reported in
2025 SCC Online SC 122. In the said case, the Court has
held as under:
“21. Conscious possession refers to a scenario
where an individual not only physically possesses a narcotic
drug or psychotropic substance but is also aware of its
presence and nature. In other words, it requires both
physical control and mental awareness. This concept has
evolved primarily through judicial interpretation since the
term “conscious possession” is not explicitly defined in the
NDPS Act. This Court through various of its decisions has
repeatedly underscored that possession under the NDPS
Act should not only be physical but also conscious.
Conscious possession implies that the person knew that he
had the illicit drug or psychotropic substance in his control
and had the intent or knowledge of its illegal nature.
22. In Abdul Rashid Ibrahim Mansuri v. State of
Gujarat reported in 2000 (2) SCC 513, this Court
highlighted that once the prosecution proves physical
possession, the burden shifts to the accused to explain how
he came into possession of the contraband and prove that he
was not aware of its presence or nature. The Court ruled
that a person who admits that drugs were found in his
possession must prove that he had no knowledge of the illicit
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nature of the substance.
23. In Madan Lal v. State of Himachal
Pradesh reported in (2003) 7 SCC 465, this Court was
dealing with a case where all the accused persons were
travelling in a vehicle when they were nabbed and recoveries
were made from them. The relevant extracts from the said
judgment are set out below:
“19. Whether there was conscious possession has to
be determined with reference to the factual backdrop. The
facts which can be culled out from the evidence on record
are that all the accused persons were travelling in a vehicle
and as noted by the trial court they were known to each
other and it has not been explained or shown as to how they
travelled together from the same destination in a vehicle
which was not a public vehicle. 20. Section 20(b) makes
possession of contraband articles an offence. Section
20 appears in Chapter IV of the Act which relates to offences
for possession of such articles. It is submitted that in order
to make the possession illicit, there must be a conscious
possession.”
24. In the overall view of the matter, we are convinced
that the High Court committed no error in dismissing the
appeal and thereby affirming the judgment and order of
conviction passed by the Trial Court.
11. Once the possession is proved, the burden would
shift up on the accused and he has to explain how the
contraband had come to his possession and that he was not
aware of the presence of such materials.
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12.Without any direct evidence on the side of the
defence and with the strong evidence on the side of the
prosecution, no conclusion can be arrived that the prosecution
has failed to prove the conscious possession of the contraband
by the appellant. As the initial presumption has not been
rebutted when the burden was shifted on the appellant, it is
correct on the part of the Court below to convict the accused
for the offence under Sections 8(c) r/w 20(b)(ii)(B), 29(1) of
NDPS Act.
13.It is learned that the appellant has already served
the sentence for a period of 102 days and he has to spend only
18 days to complete the remaining period of punishment
imposed on him.
14.The learned counsel for the appellant submitted that
if the appellant's incarcerations is continued until the
punishment is over, he may not be in a position to write his
examination and he will be placed under the list of offenders.
15.As per Section 6 of the Probation of Offenders Act,
1958 (hereinafter referred to as 'the P.O. Act'), if any person
under the age of 21 years was found guilty of having
committed an offence punishable with imprisonment, the
Court shall not by which the person is found guilty shall not
sentence him to imprisonment unless it is satisfied that, having
regard to the circumstances of the case including the nature of
the offence and the character of the offender, it would not be
desirable to deal with him under section 3 or section 4, and if
the court passes any sentence of imprisonment on the offender,
it shall record its reasons for doing so.
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16. As there is no ground available to reverse the
Judgment of the trial Court by considering the age of the
accused, I feel that the punishment alone can be modified.
The learned Additional Public Prosecutor submitted that for
the charges proved under NDPS Act, the P.O.Act has got no
application. But there is no provision is seen to be present to
that effect either in NDPS Act or in the P.O.Act. In the
absence of such a provision in both the NDPS Act and the
P.O.Act., I feel the appellant can be given with the benefit of
Section 4 of the P.O.Act on proof of good conduct.
17.Hence, a report in this regard is required to be
submitted by the Probationary Officer by 26.08.2025.”
2.Today (26.08.2025), when the matter is taken up for
hearing, it is seen that on 18.08.2025, this Court passed an order calling
for a report from the Probation Officer, without ascertaining the age of the
appellant. Now, it is understood that the appellant is 20 years at the time
of committing the offence.
3.The learned Additional Public Prosecutor submitted that, as
per Section 33 of the NDPS Act, for a person convicted under any offence
under the NDPS Act, the application of Section 360 of Cr.P.C. and the
provisions of the Probation of Offenders Act are forbidden unless the
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accused is shown to be below 18 years of age.
4.However, the learned counsel for the appellant submitted
that the appellant still has a good case on merits, as the recovery was
made against A1 and the knowledge of the appellant has not been proved.
5.This point has already been dealt with in the earlier order of
this Court dated 18.08.2025, wherein it was observed that the initial
presumption lies against the appellant and he did not choose to rebut the
same.
6.The matter has been just posted today to get the report from
the Probationary Officer, but now that possibility is not available in view
of the age restriction under Section 33 of NDPS Act. As the appellant has
already undergone 112 days of incarceration and is said to have
examinations, I feel that the period of incarceration already undergone by
the appellant can be considered as sufficient punishment, and to that
extent alone the appeal can be modified.
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7.In the result, this Criminal Appeal is partly allowed and
the conviction imposed on the appellant by the I Additional Special
Court for NDPS Act Cases, Madurai, dated 29.05.2025 in CC No.1165
of 2022 is confirmed, the sentence is reduced to the period of
incarceration already undergone by the appellant and the fine amount
imposed by the trial Court remains unaltered. Consequently, connected
miscellaneous petition is closed.
26.08.2025
NCC :Yes/No
Index :Yes/No
Internet:Yes/No
Note: Issue order copy today (26.08.2025)
PNM
To
1.The Sessions Judge,
I Additional Special Court for NDPS Act Cases, Madurai
2. The Inspector of Police,
Koodal Pudur Police Station, Madurai City.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
4.The Section Officer,
Criminal Record Section,
Madurai Bench of Madras High Court, Madurai.
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Dr. R.N.MANJULA, J.
PNM
JUDGMENT IN
and Crl.M.P(MD) No.8353 of 2025
26.08.2025
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