Madras High Court
Ravi vs The State Of Tamil Nadu on 26 August, 2025
Crl.A.(MD).Nos.600 and 817 of 2022 and 950 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.600 and 817 of 2022 and 950 of 2023
1.Ravi
2.Dhinesh Kumar ... Appellants /Accused Nos.1 & 2
in Crl.A.(MD).No.600 of 2022
Periyakaruppan ... Appellant / Accused No.4
in Crl.A.(MD).No.817 of 2022
Praveenraj ... Appellant / Accused No.5
in Crl.A.(MD).No.950 of 2023
Vs.
The State of Tamil Nadu,
represented by
The Inspector of Police,
Karimedu Police Station,
Madurai District.
(Crime No.1451 of 2020) ... Respondent / Complainant
in all appeals
COMMON PRAYER: Criminal Appeals have been filed under Section
374 of the Criminal Procedure Code, to call for the records in C.C.No.15
of 2021 dated 01.08.2022 on the file of the learned II Additional Special
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Court for NDPS Act Cases, Madurai and set aside the same.
For Appellant : Mr.M.Jegadeesh Pandian,
Advocate
in Crl.A.(MD).No.600 of 2022
Mr.M.Pitchai Muthu,
Advocate
in Crl.A.(MD).No.817 of 2022
Mr.S.Muthumalairaja,
Advocate
in Crl.A.(MD).No.950 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
common judgment.
2.The appellants are said to have committed the offence under
Sections 8(c) r/w 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred to as 'the NDPS Act') for the
alleged possession of 32 kg of Ganja. The learned II Additional Special
Court for NDPS Act Cases, Madurai convicted the appellants in C.C.No.
15 of 2021 under Sections 8(c) r/w 20(b)(ii)(C) of NDPS Act, 1985 by its
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judgment and order dated 01.08.2022 and sentenced them to undergo 10
years Rigorous Imprisonment and pay a fine of Rs.1,00,000/- each, in
default to undergo 1 year 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.3 received secret
information on 02.10.2020 at about 08.00 a.m. regarding the illegal
transport of a large quantity of ganja. He recorded the information in the
General Diary, reduced it into writing, and submitted it to his superior
officer. Thereafter, along with the officials and the informer, he
proceeded to the place of occurrence, namely Madurai Arapalayam
Ammapalam Roundana, where the informer identified a two-wheeler
bearing Reg. No.TN-64-L-3813, allegedly driven by A5. A5 then
informed them about the arrival of a Honda City car, silver in colour,
bearing Reg. No.TN-07-AW-0955.
3.2. P.W.3 and his team intercepted the said car and informed the
remaining accused of their right to be searched under Section 50 of the
NDPS Act in the presence of a Judicial Magistrate or a Gazetted Officer.
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The accused consented to be searched by P.W.3 himself. Upon
conducting the search, all the accused voluntarily disclosed that they
were transporting 32 kg of ganja in two bags kept in the boot space of the
car.
3.3. P.W.3 weighed the contraband, confirmed it's weight around
32 kg, took representative samples, sealed them separately, and also
sealed the remaining contraband. He arrested the accused, brought them
to the police station, submitted a report under Section 57 of the NDPS
Act, and registered a case in Crime No.1451 of 2020. He then submitted
a report to P.W.4.
3.4. P.W.4 conducted the investigation, produced the accused
before the Court for judicial custody, and produced all the contraband
along with the samples and other material documents before the Court.
He continued the investigation by collecting relevant documents,
obtained the chemical analysis report, and filed the final report before the
Special Court for offences under Sections 8(c) read with 20(b)(ii)(C), 25,
and 29(1) of the NDPS Act, 1985.
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3.5. 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.
3.6. The prosecution, in order to prove its case, had examined 7
witnesses as P.W.1 to P.W.4 and exhibited 12 documents as Ex.P.1 to
Ex.P.12 and marked 4 material objects as P.M.O.1 to P.M.O.4.
4.The learned Trial Judge, considering the materials and
circumstances found that all accused in C.C.No.15 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.
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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 50 of the NDPS Act, and that the joint
consent letter obtained from all the accused to comply with Section 50 is
not valid. It is further submitted that a search was conducted both on the
body of the accused and in the car; hence, Section 50 is applicable, and
there was no proper compliance. Therefore, he seeks acquittal.
5.2. It is further contended that there are material contradictions
between the evidence of P.W.2, P.W.3, and P.W.4 with respect to the
recording and acknowledgment of the information. Therefore, the version
regarding the recording of information testified during the evidence of
P.W.1 and P.W.4 is unreliable, and so, there was no proper compliance
with Section 42 of the NDPS Act. Hence, he seeks acquittal.
5.3. The learned counsel for the appellants also submits that there
is no mention about the receipt of the acknowledgment of the secret
information by the immediate superior of P.W.4, which casts doubt over
the material document, Ex.P3. There was also a delay in producing the
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contraband, and no evidence has been adduced to show that it was kept
in safe custody.
5.4. It is further argued that all the M.Os. contain crime numbers
and offence details, which indicates that they were prepared after the
registration of the FIR, raising serious doubt over the recovery.
Moreover, the Investigating Officer did not examine anyone to prove the
ownership of the vehicle.
5.5. The learned counsel further submitted that once the appellants
were acquitted of the charges under Sections 25 and 29(1) of the NDPS
Act by the learned Trial Judge, the conviction and sentence for
possession of the contraband is not legally sustainable. Therefore, they
seek acquittal.
5.6. It is further submitted that there was no compliance with
Section 52A of the NDPS Act and, therefore, the appellants are entitled
to acquittal on the basis of the judgment of the Hon’ble Supreme Court in
Mangilal v. State of M.P. reported in 2023 SCC OnLine SC 862.
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5.7. 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.
5.8. The contraband was belatedly produced before the Court
without any explanation.
5.9.There was no examination of independent witnesses.
5.10.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.
5.11. Further, with regard to the vehicle, which was used by the
accused persons, the respondent, failed to establish the ownership of the
vehicle; whom the vehicle belonged to was not at all investigated; 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
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that the appellants had driven the vehicle, which was not at all supported
with the 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.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. The same has been properly appreciated by the learned
Trial Judge, and therefore, there is no reason to differ from the findings
of the Trial Court.
6.2. In the present case, there was no necessity to comply with
Section 50 of the NDPS Act, as the recovery was made from bags kept in
the car, and not from the body of the accused. Even otherwise, the
evidence of P.W.3, P.W.2, and P.W.1 clearly establishes that the accused
were orally informed of their rights under Section 50.
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6.3. Further, the judgment relied on by the defence, namely State
of Rajasthan v. Paramananda reported in 2014 (5) SCC 345, was
considered in detail by the Hon’ble Supreme Court. In that decision, the
Supreme Court elaborately discussed the earlier precedents on Section 50
compliance and held that, in cases where the contraband is recovered
from bags, there is no necessity to comply with Section 50.
6.4. The learned Additional Public Prosecutor further submitted
that the crime number mentioned in the M.Os. was only for the purpose
of keeping the material objects in safe custody in the Court with proper
identification. The same was duly considered by the learned Trial Judge
in paragraph 34 of the judgment, which contains valid reasons and,
therefore, warrants no interference.
6.5. The learned Additional Public Prosecutor also submitted that
the delay in producing the contraband is not material when the seal
remained intact. Therefore, it is contended that the prosecution has
clearly proved the case beyond reasonable doubt, and the learned Trial
Judge has rightly considered the evidence and convicted the accused.
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6.6. The Hon’ble Supreme Court, in a subsequent decision, made
elaborate discussion on the compliance of Section 52A of the NDPS Act
and specifically held that non-compliance with Section 52A is not a
ground to disbelieve the recovery, when the evidence of the recovery
witnesses is cogent and trustworthy
6.7. 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. Discussion on compliance under Section 42 of the NDPS
Act:-
P.W.3 received the secret information on 02.10.2020 at about
08.00 a.m., about the illegal possession of the contraband by the
appellants. P.W.3 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.4. P.W.4 also acknowledged the same by
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appending his signature and granted permission to conduct raid. The said
document was marked under Ex.P.2. 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.3 and P.W.4 clearly deposed about the above facts in
cogent manner and they also deposed about the acknowledgement of the
information. Therefore, the contention of the learned counsel for the
appellants that there is non-compliance of Section 42 of the Act, is
misconceived one and the same is against the facts. In this aspect, the
prosecution clearly proved the compliance under Section 42 of the Act.
8.2.The learned counsel for the appellant would submit that the
prosecution case itself is that the searching officer received the secret
information and they did the search, recovery and arrest. 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.
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8.3. 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.
8.4.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
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
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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 Constitution Bench judgment of Supreme Court in Dr.Shah
Faesal and Others Vs. Union of India and Another reported in 2020 4
SCC 1 would submit that the ratio decidendi in S.K.Raju case is contrary
to the dictum of the 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
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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
8.5.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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8.6.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.
8.7.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.
8.8.As per the Section 42 of the Act, empowered officer who 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
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
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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
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
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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
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
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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.”
8.9.From the above, it is clear that once 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 and the above guidelines.
8.10. From the reading of Section 43 of the Act, it is clear that
when the officers make a recovery by chance 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
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situations. Section 43 of the Act authorises the 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 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.
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8.11.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
examined. In all cases, there is some discrepancy between the evidence
of the Immediate Superior and the searching 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 Immediate Superior officer
comes into the box and deposes about the receipt of the information, no
further requirement is needed 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 a ground 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 police officers and examination is
conducted after a lapse of several months and we cannot expect them to
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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.
9.Proof of consious possession:
9.1. All the accused jointly disclosed about the two bags of ganja,
which were recovered by P.W.3 along with the other officials. P.W.3 has
clearly deposed about the disclosure of the said two gunny bags by the
accused persons, and his testimony is corroborated by the evidence of
P.W.3. The athatchi was also marked in evidence, and the witnesses were
subjected to incisive cross-examination by the defence counsel regarding
the seizure of ganja. In the athatchi the signatures of accused are also
found, which have never been disputed. Therefore, from the athatchi the
conscious possession of the accused stands clearly proved.
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10.Delay in producing the contraband:
10.1. 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 some delay in producing the
contraband before the Special Court. However, this delay is not material
in the present case, as the contraband was initially produced 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. This delay, by itself, is not a ground
to disbelieve the evidence of the recovery witnesses.
10.2. 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, held that delay in producing
seized contraband before the Court may be a ground to doubt the
prosecution case only the cases where the seizure itself is doubtful. In the
present case, as discussed above, the seizure of the contraband has been
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proved beyond all reasonable doubt, and no specific reason has been
attributed against P.W.3 for registering a false case against the accused
persons. The learned Trial Judge has therefore rightly held that the delay
in this case is not a material circumstance.
11. Discussion on Section 25 of NDPS Act:
11.1 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
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
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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".
11.2 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.
12. 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 heard the arguments in details on
27.06.2025 and the same 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
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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
not revealed about the reference of 'flowering tops'.
But, there is reference that the recovered contraband
was found with “fjph;fSld; Toa
rpwpa ,iyfs;” and the said description denotes
flowering tops and he seeks time to address the issue
in detail.
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
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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.
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
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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.”
13. This Court has perused the cross-examination with regard to
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
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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.
14. 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.
15.Conclusion:-
From the evidence, it is apparent that P.W.3 received secret
information and the said secret information received was duly reduced in
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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 taken and packed with seals and
the remaining contraband was duly packed separately. The recovered
contraband of 32 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”.
15.1. The entire seized contraband namely recovered Ganja was
produced before the Court and marked without any dispute as M.O.1 to
M.O.4. The prosecution witnesses viz., P.W.1 to P.W.4, 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 32 kgs of Ganja and
the same was in their conscious possession. The appellants never said
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
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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. Therefore, all the appeals deserve to be dismissed.
16. In the result,
(i) The Criminal Appeals are dismissed and the judgment passed
by the learned II Additional Special Court for NDPS Act Cases, Madurai
in C.C.No.15 of 2021 dated 01.08.2022 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 the remaining
period of their imprisonment.
26.08.2025
NCC : Yes/No
Index : Yes/No
Internet : Yes/No
pal
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Crl.A.(MD).Nos.600 and 817 of 2022 and 950 of 2023
To
1.The learned Special Judge,
II Additional Special Court for NDPS Act Cases,
Madurai.
2.The Inspector of Police,
Karimedu Police Station,
Madurai 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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Crl.A.(MD).Nos.600 and 817 of 2022 and 950 of 2023
K.K.RAMAKRISHNAN, J.
pal
Pre-delivery order made in
Crl.A.(MD).Nos.600 and 817 of 2022 and 950 of 2023
26.08.2025
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