Madras High Court
Pandiarajan vs State Rep By on 26 August, 2025
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.388 & 1074 of 2023
and
Crl.M.P.(MD).Nos.7404 and 17174 of 2023 and 6373 of 2024
Crl.A.(MD).No.388 of 2023
Pandiarajan ... Appellant
/Accused No.1
Vs.
State rep by
The Inspector of Police,
Usilampatti Town Police Station,
Madurai District.
(Crime No.397 of 2021) ... Respondent
PRAYER: Criminal Appeal has been filed under Section 374 (2) of
Criminal Procedure Code, to call for the records in C.C.No.185 of 2022
dated 12.04.2023 on the file of the learned I Additional Special Court for
NDPS Act cases, 1985, Madurai and set aside the same.
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For appellant : Mr.M.Jegadeesh Pandian
For respondent : Mr.R.Meenakshi Sundaram
Additional Public Prosecutor
****
Crl.A.(MD).No.1074 of 2023
Karnan ... Appellant
/Accused No.2
Vs.
State rep by
The Inspector of Police,
Usilampatti Town Police Station,
Madurai District.
(Crime No.397 of 2021) ... Respondent
PRAYER: Criminal Appeal has been filed under Section 374 (2) of
Criminal Procedure Code, to call for the records in C.C.No.185 of 2022
dated 12.04.2023 on the file of the learned I Additional Special Court for
NDPS Act cases, 1985, Madurai and set aside the same.
For appellant : Mr.S.Muniyandi
For respondent : Mr.R.Meenakshi Sundaram
Additional Public Prosecutor
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COMMON JUDGMENT
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.
The accused Nos.1 and 2 in C.C.No.185 of 2022 on the file of the I
Additional Special Court for NDPS Act Cases, Madurai, have filed these
Criminal Appeals before this Court challenging the conviction and
sentence imposed against them in the impugned judgment and order
dated 12.04.2023. The conviction and sentence is as follows:
Conviction for the Offence under Sentence of Imprisonment
Section
8(c) r/w 20(b)(ii)(C) of the NDPS Act 10 years R.I and to pay a fine of
Rs.1,00,000/- each in default to
undergo 12 months S.I
Brief facts of the case
2. According to the prosecution, on 03.09.2021 at about 14.00 hours,
P.W.2/Sub-Inspector of Police, Usilampatti Town Police Station received
secret information about the illegal transportation of Ganja by the
accused persons. He recorded the said information under Ex.P5, in the
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General Diary and informed the same to his superior and obtained the
permission and went to the occurrence place along with his team and also
the informant. The informant identified two persons and left the scene of
occurrence. On seeing them, A2/Karnan escaped from the scene of
occurrence. P.W.2 and his team rounded up A1/Pandiarajan and
Ex.P1/Search Consent Letter was prepared for A1 alone and the same
was read over and after explaining to him his signature was obtained in
it. He took two samples each weighing 50 gms packed in kakki colour
cover, stamped with SHO seal and identified as S1 and S2 and the same
was marked as M.O.1 and M.O.2. Remaining Ganja weighing 21.900 kgs,
was repacked in the same bag, stamped with SHO Seal and marked as
M.O.3. P.W.2 prepared a seizure mahazar under Ex.P.4 and seized the
Ganja. Thereafter, P.W.2 arrested A1 by serving Ex.P3/Arrest memo and
brought him to the Station and registered a case in Crime No.397 of 2021
for the offence punishable under Section 8(c) r/w 20(b) (ii) (c) of NDPS
Act, 1985, under Ex.P7/FIR. He also prepared Form 95 under Ex.P8 for
sending the seized goods to the Court through the Inspector of
Police/P.W.3. After receipt of the FIR and detailed report he made a
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requisition letter under Ex.P9 to the Court to send the contraband for
Chemical Analysis. After recording the statement of the Chemical
Analyst and on verification and after completing the investigation, he laid
the charge sheet as against both the accused. The learned trial Judge took
the same on file in C.C.No.185 of 2022.
3. After appearance of the accused, copies of records were furnished
to them under Section 207 Cr.P.C. The learned Trial Judge, on perusal of
records and on hearing both sides and after being satisfied that there
existed a prima facie case against the accused/appellant, framed charges
under Sections 8(c) r/w 20(b)(ii)(C) 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.
4.The prosecution, in order to prove its case, had examined 4
witnesses as P.W.1 to P.W.4 and exhibited 11 documents as Ex.P.1 to
Ex.P.11 and marked three material objects as P.M.O.1 to P.M.O.3.
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5.When the accused were examined under Section 313(1) (b) of
Cr.P.C., with regard to incriminating aspects against them, they denied
the evidence as false and further stated that a false case was foisted
against them. The accused neither produced any documents nor
examined any witness on their side.
6.The learned Trial Judge, considering the materials and
circumstances found that accused in C.C.No.185 of 2022 were guilty and
passed the conviction and sentence against the appellants as stated above.
Aggrieved over the same appellants preferred this appeal.
7. Submission of the learned counsel for the appellants
The learned counsel for the appellants would submit that there was
total non-compliance of mandate of Section 42 of the NDPS Act, 1985.
According to the prosecution, P.W.2 received the secret information on
03.09.2021 at about 14.00 pm and he reduced in writing and informed the
same to the Inspector of Police and the Deputy Superintendent of Police
under Ex.P5. The Inspector of Police also received the same and signed.
According to the learned counsel for the appellant, the oral evidence was
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not enough and it should form part of either final report or the copies
should have been furnished under Section 207 of Cr.P.C. Further, the
original was not produced and in all probabilites, the same was concocted
one. To substantiate the said contention, he further submitted that two
persons were intercepted and one person had escaped from the scene of
the occurrence. Therefore, there is a specific information about one person
and allowing the other person to flee away from the occurrence place
shows there is some suspicion relating to the receipt of the information
and recovery of the contraband. According to the prosecution, the
occurrence place is MGR Nagar “crpyk;gl;b fUf;fl;lhd;gl;b vk;.[p.Mh;
efhpy; ghz;bauh[d; vd;gthpd; tPl;bw;F mUNf”. In the said information,
there is no mentioning of the door number and also the evidence of P.W.1
is that the team went to occurrence place without informer and found
two persons in M.G.R. Nagar near the house of the first accused with
white color gunny bag. In the occurrence place, more than 500 houses are
situated. In the said information, while there is no mentioning of any
door number, in the said circumstances, how could they found the
accused near the place of house of the first accused is not explained. It is
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admitted case that the informer had not identified and travelled along
with P.W.1 and P.W.2. In all circumstances, there is a suspicion regarding
the alleged recovery. Further, no record was collected to prove ownership
of the place of the occurrence. Therefore, he seeks for acquittal.
8. Submission of the learned Additional Public Prosecutor
The learned Additional Public Prosecutor submitted that Section 42
of the NDPS Act, 1985, was strictly complied with. He also submitted that
Ex.P5 was produced and some contradiction in the evidence of P.W.1,
P.W.2 and P.W.4 relating to the scene of occurrence is not a ground to
disbelieve the evidence of recovery witnesses. Mere fact that the informer
did not accompany is also not a ground to disbelieve the version of P.W.1
and P.W.2 to doubt the occurrence place and recovery of the contraband.
Section 57 of the NDPS Act, 1985, and other mandatories were complied
with and hence, the prosecution clearly proved the case beyond
reasonable doubt.
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9.This Court considered the rival submissions made by the learned
counsel appearing for the appellant and the learned Additional Public
Prosecutor appearing for the respondent and perused the materials
available on record and the precedents relied upon by them.
10.The question in this case is whether the prosecution has
established the case beyond reasonable doubt against the appellants and
the learned trial Judge's conviction and sentence imposed against the
appellant can be sustained or not?
11.Discussion on the compliance under Section 42 of the NDPS
Act:
The main contention raised by the learned counsel for the appellant
is that there is total non-compliance of Section 42 of the NDPS Act, 1985.
The Learned Trial Judge erroneously held that section 42 is not applicable
to the present case as against the prosecution case that the searching
officer received secret information and made entry in the case diary and
reduced in writing and informed to the superior and proceeded to the
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occurrence place and recovered the contraband and arrested the accused.
The learned trial judge's finding that section 43 is applicable to the
present case and there was no requirement for compliance under section
42 is perverse.
11.1.The learned trial 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 erroneous 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.
11.2.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.
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11.3.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 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 judgment of Hon'ble
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
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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 a 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
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
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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
11.4.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 in which the searching
officers, who come under the purview of the NDPS Act, have reason to
believe any narcotic drugs or psychotropic substance or controlled
substance is illegally acquired or concealed.
11.5.Section 41(2) of the Act empowers the searching officer, who
has 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.
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11.6.Section 42 of the Act following Section 41 of the Act mandates
to follow certain procedure 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.
11.7.As per the Section 42 of the Act, if the empowered officer has
received the secret information about the illegal possession,
transportation of narcotic drugs or psychotropic substance or controlled
substance and the empowered officer is duty bound to reduce the said
information in writing and shall send the same to his immediate superior
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:-
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35.In conclusion, what is to be noticed is that Abdul
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 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.
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(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 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,
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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.”
11.8. 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.
11.9.From the reading of Section 43 of the Act, it is clear that when
the officers while on patrol duty by chance make a recovery, 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 authorises the empowered officer mentioned in
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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 searching 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 distinguished the 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 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.
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11.10. By applying the above principles, it is the duty of this court to
test the finding of the learned trial judge whether the section 43 is
applicable to the present case and the prosecution proved the compliance
of the section 42 of NDPS Act. The Learned trial judge has observed that
the recovery was made in front of the accused house and has held that
section 43 is applicable which is not correct. The prosecution itself has
come forward with the application of the section 42 of NDPS Act. The
contraband was recovered from near the house of the accused No.
1/Pandiarajan and the said concealed place was found by the searching
officer on the disclosure of the accused No.1. Section 43 as discussed
above by Hon'ble Supreme Court is applicable only when the officers by
chance made the recovery while on patrol duty. In this case, PW 2
received the secret information and proceeded further on the basis of the
said secret information and recovery also made from the concealed place
on the disclosure of the accused No.1. Therefore the finding of the learned
Trial judge that section 43 is applicable on the reasoning that the recovery
was made in the public place situated near the house of the accused is
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perverse and this court holds that section 42 is applicable to this case as
rightly argued by the learned counsel of the appellants. Now the
remaining question which has to be decided is whether the mandatory
requirement of section 42 of the Act is complied with or not.
12. P.W.2 received the secret information on 03.09.2021 at 14.00
hours. He recorded the same and informed to the Inspector of Police and
the Deputy Superintendent of Police and he deposed that he also made
entry in the General Diary and also reduced the same in writing under
Ex.P5 and he sent the same to P.W.3 and the same was submitted to P.W.
4. P.W.4 acknowledged the information and granted permission to
conduct raid. But, P.W.3 stated that he received the information through
phone call. So, the learned counsel for the appellant would draw the
attention of this Court to Ex.P5. Ex.P5 is a Xerox copy. P.W.4, specifically
admitted that the said document was not sent to the Court, but, the same
was kept in the file. The relevant evidence of P.W.3 is as follows:
jftiy Kjypy; Jiz fz;fhzpg;ghsUf;F
njhptpj;jjhfTk; gpwF jhd; vdf;F njhptpj;jjhfTk;
mj;jhl;rp rhl;rpfs; kw;Wk; rhh;G Ma;thsh; thf;F%yj;jpy;
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Fwpg;gpl;L nrhy;ypAs;shh;fs; vd;why; rhpay;y. Jiz
fz;fhzpg;ghsh; kw;Wk; vd;dplk; jfty; nrhd;djhf jhd;;
nrhy;ypAs;shh;fs;. XNu egh; xNu rkaj;jpy; 2 egh;fis
njhlh;G nfhs;s ,ayhJ vd;why; rhpjhd;. jfty; cldb
Nky; mjpfhhpf;F 72 kzp Neuj;jpy; njhptpf;f Ntz;Lk;
vd;why; rhpjhd;. me;j jfty; ePjpj;Jiw eLth; ePjpkd;wj;jpw;F
mDg;gtpy;iy vd;why; rhpjhd;. mit
Nfhg;GfspNyNa ,Ue;Jtpl;ljhy; mDg;g ,aytpy;iy.
12.1.P.W.4, who is the Deputy Superintendent of Police also
admitted the same, which reads as follows:
Kjy; jfty; mwpf;if kw;Wk; rhh;G Ma;thshpd;
tprhuiz thf;F%yj;jpy; jftiy Kjypy; rhh;G Ma;thsh;
fhty;Jiz fz;fhzpg;ghsUf;F njhptpj;jjhf jhd; cs;sJ
vd;why; vdf;Fk; Ma;thsUf;Fk; njhptpj;jhh;. jfty; cldb
Nky; mjpfhhpf;F 72 kzp Neuj;jpy; njhptpf;f Ntz;Lk; vd;why;
rhpjhd;. jfty; ePjpj;Jiw eLth; ePjpkd;wj;jpw;F
mDg;gg;gltpy;iy vd;why; rhpjhd;. tof;F Nfhg;Gf;fis ehd;
vd;W tprhuizf;F vLj;Jf;nfhz;Nld; vd;why; 26.12.2021 k;
Njjp vLj;Jf;nfhz;Nld;. Mtzq;fis ehd; ghh;itapl;Nld;
vd;why; rhpjhd;. jftypd; mry; tof;F
Nfhg;Gf;fspy; ,Ue;jpU;ejhy; mij ehd; Fw;wg;gj;jphpf;if
jhf;fy; nra;Ak; NghJ ePjpkd;wj;jpy; jhf;fy; nra;jpUg;Ngd;
vd;why; mit Vw;fdNt ePjpkd;wj;jpy; jhf;fy;
nra;ag;gl;Ltpl;lJ. jftypd; mry; Mtzk; tof;FNfhg;Gfspy;
ehd; ghh;itapLk; NghJ ,y;iy vd;why; rhpjhd;. jftyhdJ
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vg;NghJ ePjpkd;wj;jpy; jhf;fy; nra;ag;gl;lJ vd;w tptuk;
vdf;F njhpAkh vd;why; Qhgfk; ,y;iy. jfty; 17 khjq;fs;
fopj;J ,e;j tof;fpw;F tYTl;Ltjw;fhf gpd;dpl;L
jahhpf;fg;gl;L ePjpkd;wj;jpy; jhf;fy; nra;ag;gl;Ls;sJ vd;why;
rhpjhd;.
12.2.P.W.2 also admitted the same, which reads as follows:
..Kjy; tprhuizapy; jftiy jdpj;jhspy; gjpT
nra;jjhfTk; fhty; Ma;thsh; mjpy Nkw;Fwpg;G
nra;jjhfTk; nrhd;d tptuq;fis Ma;thsh; tprhuizapy;
nrhy;ytpy;iy vd;why; rhpjhd;...
jfty; jtph;j;J jftiy jdpahf vOj;J %ykhf
gjpT nra;jjhfNth jftypd; efy; kw;Wk; mry; fhty;
Ma;thsUf;F mDg;gpajhfNth ve;j xU Mtzj;jpYk;
Fwpg;Gfs; ,y;iy vd;why; rhpjhd;.
12.3. In view of the above circumstances, the learned counsel
submitted that there was no compliance of Section 42 of the NDPS Act,
1985, is incontrovertible well merited one. To overcome this, they
produced the document under Ex.P5, which also contained manipulation
as admitted by him in his cross examination and produced before the
Court. In the Xerox copy of the said document there is no explanation as
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to the original document prepared by P.W.2. P.W3 says that the same was
kept in the CD file which conflicts with the evidence of P.W.4 that no
such document was available in the CD file. Apart from that, admission
of all the officers are that the said document was not sent to the Court.
The same does not form part of either final report or the copies under
Section 207 of Cr.P.C. This Court also perused the material and
immaterial records and finds that there is no compliance of Section 42 of
the NDPS Act, 1985. The learned trial Judge has held that Section 42 of
the NDPS Act, 1985 is not applicable to the present case. The said finding
of the learned trial Judge is not correct as referred in the above case. The
case of the prosecution is that they complied Section 42 of the NDPS Act,
1985 on receipt of information. The learned trial Judge's finding that
Section 42 of the NDPS Act, 1985 is not applicable is erroneous one.
Hence, in all aspects, there was no compliance of Section 42 of the NDPS
Act, 1985, which would vitiate the entire trial. Further, the compliance
under Section 42 of the NDPS Act, 1985 is the base of the case and when
the prosecution failed to establish the base of the case, the entire edifice
will collapse.
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12.5.The learned counsel for the appellants would submit that Ex.P5
was produced only on 16.02.2023, ie., after 17 months from the date of
receipt of the information. Therefore, it casts a serious doubt over the
compliance under Section 42 of the NDPS Act. To Consider the said
submission, this Court perused the final report filed before the Court
below and also the copies served upon the appellant/accused under
Section 207 of Cr.P.C. Neither in the final report nor in the copies served
under Section 207 of Cr.P.C., the copy of Ex.P5 is not available and it was
produced only at the time of the chief examination. P.W.3 admitted that
the copies of Ex.P.5 were not sent to the jurisdictional Court. Even the
said document does not contain any seal. All the documents produced by
the prosecution contained seal of the Court and signature of the learned
Judicial Officers. But, this document does not contain any signature. Even
in the document it is not referred that there was an entry in the General
Diary relating to the recording of the said information. It is the evidence
of P.W.2, there was no endorsement of the learned Judicial Magistrate.
The following endorsement alone is found:
“SI Sekar take necessary action and report as per law”
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12.6. But the evidence of P.W.3, who is said to have made the
endorsement is as follows:
mg;NghJ jftiy vt;thW vdf;F jfty;
njhptpj;jhh; vd;why; jfty; gjpT nra;Jtpl;L jq;fs;
ghh;itf;F itj;Js;Nsd; vd;W $wp vdf;F miyNgrp
*yk; njhptpj;jhh;. ehd; fhty; epiyaj;jpw;F
jpUk;gTk; vj;jid kzpf;F te;Njd; vd;why; 16.30
kzpf;F te;Njd;. mg;NghJ tof;F rk;ge;jkhd
midj;J eltbf;iffSk; Kbtile;jJ vd;why;
rhpjhd;.
12.7. From the above evidence of P.W.2 that after the endorsement
made by P.W.3, P.W.1 and P.W.2 went to the occurrence place to seize the
contraband in compliance with Section 42 is not correct. It is the specific
case of P.W.2 that after obtaining the permission, he proceeded further.
But the contra evidence is that P.W.3 was not available. Therefore, as
rightly pointed out by the learned counsel for the appellants, Ex.P5 is
concocted one in order to buttress the case of prosecution.
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12.8. It is the specific case of P.W.2 that he recorded information and
submitted to P.W.3 and obtained the permission and thereafter proceeded
further. Therefore, this Court finds that the prosecution has not complied
the mandatory requirement of Section 42 of the NDPS Act. If P.W.2
reduced in writing and submitted to the higher official the document
would have formed part of the final report or the copies would have been
served under Section 207 of Cr.P.C.
12.9.Further no explanation was furnished by P.W.2 and P.W.3 for
the non-production of the said document for 17 months, which creates
doubt over its existence and the case of P.W.2 that it was prepared on
03.09.2021. Therefore, this Court holds that there is total non-compliance
of Section 42 of the NDPS Act and hence, the appellant is entitled to
acquittal.
13.Place of the occurrence:
According to the prosecution, the information was received by P.W.
2 and recorded by P.W.2 and the informant informed through the phone
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about the illegal possession of the contraband by A1/Pandiayarajan and
other person in Usilampatti, Karukkattanpatti Road, M.G.R.Nagar, near
the house of Pandiyarajan. He also stated that he has not stated the door
number of the house of Pandiyarajan. He informed that he would identify
the accused. As per the evidence of P.W.2 and P.W.3, the door number of
Pandiyarajan is not available in the information and also they did not
have the knowledge about the door number of the house of Pandiyarajan.
There was no investigation relating to the door number of the house of
Pandiyarajan. Admittedly, more than 500 houses are located in M.G.R.
Nagar. P.W.2's specific case is that informant has not identified the
accused. He has not accompanied P.W.2. Therefore, as to how P.W.2
ascertained the identity of Pandiyarajan and his house is lacking.
Therefore, there is a serious doubt over the recovery of the contraband.
There is a material contradiction between the evidence of P.W.2 and P.W.
3 relating to the place of occurrence. According to P.W.2, he came to
know about the house of Pandiarajan upon his disclosure ie., vjphpapd;
tPL vd;W vt;thW njhpe;J nfhz;Nlhk; vd;why; mth; nrhy;yp jhd;
njhpAk;. tPl;bd; chpikahsh; Fwpj;J gl;lh gj;jpuk; Fwpj;J vJTk;
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ifg;gw;wpNdhkh vd;why; ,y;iy. P.W.3 also deposed that he has not
recovered any material to prove the ownership of the house of
Pandiarajan. Therefore, the recovered place has not been proved by any
sketch and observation mahazar and any other evidence to show that the
recovery was made in front of or near the place of the appellant's house.
13.1. There is no evidence on record to show that either P.W.1 or
P.W.2 or other persons accompanying the team took any steps to chase
the absconded accused. Without any evidence to prove their efforts to
chase the absconded accused, this Court is unable to accept the presence
of both accused in the scene of occurrence. Therefore, the presence of the
accused in the scene of the occurrence along with the contraband is not
proved beyond reasonable doubt. The recovery mahazar under Ex.P4
states as follows:
16.00 kzpf;F crpyk;gl;b fUf;fl;lhd;gl;b NuhL
MGR efhpy; cs;s vjphp gz;bauh[d; tPl;bd; mUfpy;
itj;J.
13.2. There was no record to show whether Pandiarajan's house is
situated in the locality and no sketch was prepared to show that the
recovered place is situated near Pandiarajan house. Therefore, the
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preparation of the Athachi is not proved.
13.3. That apart, it is the specific case of the prosecution that P.W.1
and P.W.2 went to the scene of the occurrence without informer and they
have not produced any records to show there were no residences in that
area. In the said circumstances, without any knowledge about the door
number or any address of the first accused, there is a serious doubt in the
prosecution case about the identification of the occurrence place. This
Court is unable to believe the recovery from the alleged place of
occurrence.
14. Other Infirmities in the Prosecution Case:
14.1.When they reached the place of occurrence, on seeing them
both the accused tried to escape from the scene of the occurrence. They
caught Pandiarajan/A1, A2 had escaped from the scene of the
occurrence. Further, the case of the police officers that one of the accused
fled away from the scene of the occurrence is unbelievable one. Looking
from another angle, they allowed the accused to escape from the scene of
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the occurrence and therefore, they are liable to be prosecuted under
Section 59 of the NDPS Act, 1985.
14.2. Further it is admitted that the report under Section 57 of the
NDPS Act, 1985 also was not sent within time. It is admitted by the
investigating officer/P.W.4, in his cross examination. The report did not
contain the acknowledgment of the other officers. According to P.W.2, the
report was received by P.W.3, but, there was no signature. In Ex.P6, there
is no signature of the Inspector of Police. The Hon'ble Supreme Court has
held that the non compliance of Section 57 of the NDPS Act, 1985, in
isolation is not a circumstance to disbelieve the evidence of other
circumstances. In this case as observed above, the said non compliance is
affecting the case of recovery.
15. Discussion on the involvement of the Accused No.2/Appellant
in Crl.A.(MD) No. 1074 of 2023:
15.1. So far as the appellant No.2 is concerned, according to the
prosecution, he escaped from the scene of occurrence. Nothing is
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available on record to show to believe the presence of A2 in the scene of
occurrence. Even evidence was not recorded that the absconding accused
is A2. P.W.1 and P.W.2 had not even identified the accused before the
Court. In view of the fact that there was no recovery from A2 and there
was no proof of his company along with A1 in near the place of
Pandiarajan house, this Court is unable to convict A2 also.
16.In the result, this Criminal Appeal stands allowed in the
following terms:
16.1. The conviction under Section 8(c) r/w 20(b)(ii)(C) of
NDPS Act passed by the learned I Additional Special Judge, Special
Court for NDPS Act cases, Madurai, dated 12.04.2023, in C.C.No.
185 of 2022, is hereby set aside.
16.2. The appellants are acquitted from all the charges in
C.C.No.185 of 2022, dated 12.04.2023 passed by the learned I
Additional Special Judge, Special Court for NDPS Act cases,
Madurai.
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16.3.Fine amount paid by the appellants shall be refunded to the
appellants forthwith.
16.4.Bail bond executed by the appellants shall stand
terminated.
Consequently, connected miscellaneous petitions are closed.
26.08.2025
NCC :Yes/No
Index :Yes/No
Internet :Yes/No
sbn
Note: Issue order copy on 28.08.2025.
To
1.The I Additional Special Court for NDPS Act cases,
Madurai.
2.The Inspector of Police,
Usilampatti Town Police Station,
Madurai District.
3.The Superintendent of Prison,
Central Prison, Madurai.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
5.The Section Officer,
Criminal Section (Records)
Madurai Bench of Madras High Court, Madurai.
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K.K.RAMAKRISHNAN.J,
sbn
Crl.A.(MD).Nos.388 & 1074 of 2023
and
Crl.M.P.(MD).Nos.7404 and 17174 of 2023 and 6373 of 2024
26.08.2025
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