Kubendiran vs The State Rep By Its
2025 Latest Caselaw 1663 Mad

Madras High Court

Kubendiran vs The State Rep By Its on 9 January, 2025

                        BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                Dated : 09.01.2025

                                                     CORAM

                          THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN

                                            Crl.A.(MD).No.1043 of 2023

                Kubendiran                                    ... Appellant/Sole Accused

                                                        Vs.
                The State rep by its,
                The Inspector of Police,
                NIB CID, Theni District.
                (Crime No.43 of 2013)                         ... Respondent/Complainant


                PRAYER: Criminal Appeal filed under Section 374 (2) of Criminal
                Procedure Code, to call for the records in C.C.No.31 of 2016 dated
                07.10.2023, on the file of the II 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

                                                   JUDGMENT

The sole accused in C.C.No.31 of 2016 on the file of the II Additional

Special Court for NDPS Act Cases, Madurai, has filed this Criminal

Appeal before this Court challenging the conviction and sentence

https://www.mhc.tn.gov.in/judis imposed against him in the impugned judgment dated 07.10.2023. The

conviction and sentence is as follows:

Conviction for the Offence under Sentence of Imprisonment Section 8(c) r/w 20(b)(ii)(B) of the NDPS Act 3 years R.I and to pay a fine of Rs.15,000/- in default to undergo 6 months S.I

2. According to the prosecution, on 18.05.2013 at about 03.15 p.m,

P.W.2 received the secret information regarding transportation of Ganja

by the appellant. He recorded the said information in the General Diary

and informed the same to his superior/P.W.3 and obtained the

permission and proceeded to the occurrence place along with his team

and the informer. The informant identified the accused, who was coming

in a black colour Hero Honda Passion two wheeler bearing

Reg.No.TN-60-K-7485. On seeing the police party, the appellant left the

scene of occurrence. However, P.W.2 and his team surrounded the

appellant and made a search on him under Ex.P1/Search Consent Letter

and recovered the contraband of 6 Kgs of Ganja in a white colour plastic

gunny bag and took the sample following the procedure stated in the

https://www.mhc.tn.gov.in/judis NDPS Act. Then, they arrested the accused and taken him to the Station

and registered the case and produced the accused along with the

contraband before the learned Judicial Magistrate and the investigation

was continued by the Investigating Officer and he filed the final report

after obtaining the Chemical Analysis Report and examining the

witnesses. The learned trial Judge has taken the same on file in C.C.No.31

of 2016.

3. After appearance of the accused, copies of records were furnished

to him under Section 207 Cr.P.C. 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/appellant, framed charges under

Sections 8(c) r/w 20(b) (ii) (B) of NDPS Act, and the same was read over

and explained to him and on being questioned, the accused/appellant

denied the charges and pleaded not guilty and stood for trial.

4.The prosecution, in order to prove its case, had examined 3

witnesses as P.W.1 to P.W.3 and exhibited 12 documents as Ex.P.1 to

Ex.P.12 and marked three material objects as M.O.1 to M.O.3.

https://www.mhc.tn.gov.in/judis

5.When the accused was examined under Section 313(1) (b) of

Cr.P.C., with regard to incriminating aspects against him, he denied the

evidence as false and further stated that a false case was foisted against

him. The accused neither produced any documents nor examined any

witness on his side.

6.The learned Trial Judge, considering the materials and

circumstances found that accused in C.C.No.31 of 2016 was guilty and

passed the conviction and sentence against the appellant as stated above.

7.The learned counsel for the appellant made the following

submissions:-

7.1.There was a huge delay in producing the contraband before the

Court below and the same was not properly explained and hence, there is

a doubt over the recovery of the contraband.

7.2.He further submitted that there is no compliance of Sections 42

& 50 of NDPS Act, in letter and spirit. Therefore, the conviction and

sentence passed against the appellant is to be set aside.

https://www.mhc.tn.gov.in/judis 7.3.Non examination of the independent witnesses is an additional

circumstance which creates doubt over the recovery of the contraband as

alleged by the prosecution.

7.4.There was no compliance of Section 57 of the NDPS Act.

Hence, he seeks to allow this appeal by setting aside the

conviction and sentence passed by the learned trial Judge.

8.The learned Additional Public Prosecutor made the following

submissions:-

8.1.Delay in producing the contraband before the Special Court is

not material lapse, to acquit the appellant, when the entire contraband

was produced before the learned Judicial Magistrate at the time of the

remand itself and the same was duly verified by the learned Judicial

Magistrate and thereafter, the same was produced before the Special

Court without any tampering of the seal.

https://www.mhc.tn.gov.in/judis 8.2.The said contraband was marked as material object before the

trial Court without objection and hence, the contention of the learned

counsel for the appellant is not legally sustainable.

8.3.The Hon'ble Constitution Bench of the Supreme Court in

Mukesh Singh Vs. State (Narcotic Branch of Delhi) reported in (2020) 10

SCC 120 reiterated the principle that the non-examination of the

independent witnesses is not a circumstances to disbelieve the evidence

regarding recovery, when the other evidence are cogent and trust worthy.

In this case, the learned trial Judge has considered the entire evidence to

hold that the recovery from the appellant was proved in accordance with

law.

8.4. In all aspects, the prosecution clearly proved the case through

the evidence and contemporaneous documents. Therefore, he prayed for

dismissal of the appeal.

https://www.mhc.tn.gov.in/judis

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 arises for consideration in this case is whether the

prosecution has established the case beyond reasonable doubt against the

appellant and the learned trial Judge's conviction and sentence imposed against

the appellant can be sustained or not?

11.P.W.2 had received the secret information about the illegal

transportation of Ganja by the appellant on 18.05.2013 at 03.15 pm.

Thereafter, after making entry in the General Diary and reduced it in

writing and the same was sent to the superior officer under Ex.P5. In

Ex.P5, there is a clear mention about the information sent to the superior

and the same was done as per the compliance of the Hon'ble Constitution

Bench judgment in the case of Karnail Singh Vs. State of Haryana

https://www.mhc.tn.gov.in/judis reported in (2009) 8 SCC 539. The said document was marked and there

was no dispute over the said document. Even though, they are subjected

to the cross examination, nothing was elicited to disbelieve the said

documents. Therefore, in this case, the procedure under Section 42 of the

NDPS Act, is complied with. P.W.2 after recording the information and

complying the procedure under Section 42 of the NDPS Act, proceeded to

the occurrence place as stated by the informant, namely, near

Varusanadu-Singarajapuram, Vaigai River bridge on 18.05.2013 at 03.15

pm. By following the procedure, he recovered the contraband from the

gunny bag carried by the appellant. The said evidence of P.W.2

corroborated with the evidence of P.W.1. Both were subjected to cross

examination and nothing was elicited to disbelieve their version. Further,

in the evidence of P.W.1 and P.W.2, there are no material contradictions

or discrepancies between their version relating to the recovery of the

contraband. Their evidence are cogent and trust worthy. No material was

elicited to disbelieve their version or any case of false implication.

Therefore, the recovery was proved in accordance with law.

https://www.mhc.tn.gov.in/judis

12.P.W.2, had taken the sample from the bag carried by the

appellant and properly sealed and the remaining contraband also was

properly sealed. Then, they prepared mahazar and brought the accused,

remaining contraband and the samples to the police station and

registered the case. Thereafter, he prepared the report under Section 57 of

the NDPS Act and submitted to P.W.3. P.W.3 clearly deposed about the

receipt of the information under Section 42 of the NDPS Act and also the

report submitted by P.W.2. He also deposed about the fact that the

accused along with contraband under Form-91 was produced before the

Court at the time of remand itself. There was no delay in producing the

entire contraband along with the sample taken under M.O.1 to M.O.3.

The Chemical Analysist also in his report, speaks about the presence of

cannabis in the samples produced before him and the report was marked

as Ex.P.12. Therefore, in all aspects, the prosecution clearly proved the

offence under Section 8(c) r/w 20(b)(ii)(B) of NDPS Act. This Court finds

no merit in the contention of the learned counsel for the appellant to

disbelieve their version. Hence, the conviction and sentence imposed by

https://www.mhc.tn.gov.in/judis the learned trial Judge is hereby confirmed.

13. Considering the period of incarceration and also considering the

fact that even though the accused has previous antecedents, after the year

2015, he has not involved in any of the offence, this Court is inclined to

reduce the sentence from 3 years to 6 months.

14.Accordingly, this Criminal Appeal is partly allowed in the

following terms:

(i)the conviction passed against the appellant for the offence under

Sections 8(c) r/w 20(b)(ii)(B) of NDPS Act in C.C.No.31 of 2016, by the

II Additional Special Court for NDPS Act Cases, Madurai, vide judgment

dated 07.10.2023, is hereby confirmed.

(ii) the sentence of imprisonment to undergo 3 years rigorous

imprisonment and a fine of Rs.15,000/-, in default, to undergo 6 months

simple imprisonment for the offence under Section8(c) r/w 20(b)(ii)(B) of

NDPS Act;

is modified into

https://www.mhc.tn.gov.in/judis “to undergo 6 months of rigorous imprisonment for the offence under Section

8(c) r/w 20(b)(ii)(B) of NDPS Act; and the judgment relating to the fine amount

is hereby confirmed”.

                                                                       09.01.2025

                NCC               :Yes/No
                Index             :Yes/No
                Internet          :Yes/No
                dss

                Note : Issue order copy on 23.01.2025


                To

1.The II Additional Special Court for NDPS Act Cases, Madurai.

2. The Inspector of Police, NIB CID, Theni 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.

https://www.mhc.tn.gov.in/judis K.K.RAMAKRISHNAN.J,

dss

09.01.2025

https://www.mhc.tn.gov.in/judis