Madras High Court

Nagamurugan @ Asha vs The State Rep on 5 June, 2025

                                                                                              Crl.A.(MD)No.619 of 2025


                            BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                       DATED : 05.06.2025

                                                                CORAM :

                                     THE HONOURABLE MS. JUSTICE R.N.MANJULA

                                                  Crl.A.(MD)No.619 of 2025
                                               and Crl.M.P(MD).No.6772 of 2025

                     Nagamurugan @ Asha                                          ... Appellant/Accused No.1
                                                                     vs.
                     The State rep., by
                     The Inspector of Police,
                     Keerathurai Police Station,
                     Madurai District.
                     Crime No.607 of 2019                                        ... Respondent/Complainant

                     Prayer : Criminal Appeal filed under Section 415(2) of BNSS, to call for
                     the entire records in connection with the judgment in C.C.No.314 of 2019
                     dated 28.03.2025 on the file of the learned Principal Additional District
                     Judge, Special Court for EC and NDPS Act Cases, Madurai and set aside
                     the conviction and sentence imposed on the appellant.
                                        For Appellant         : Mr.J.Vijayaraja
                                        For Respondent        : Mr.R.Meenakshi Sundaram
                                                                Additional Public Prosecutor

                                                             JUDGMENT

This appeal is filed by the first accused challenging the conviction

and sentence imposed on him by the learned Additional District Judge,

Principal Special Court for EC & NDPS Act Cases, Madurai, in C.C.No.314

of 2019, dated 28.03.2025.

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2. The case of the prosecution in brief is as under :-

(i) On 27.06.2019, at about 12.00 hours, P.W.2, the Sub Inspector of

Police attached to Keerathurai Police Station, received a secret information

from an informant. The said information was reduced in writing and was

forwarded to the immediate superior officer, P.W.3, the Inspector of Police.

Thereafter, the Sub-Inspector of Police proceeded to the spot mentioned by

the informant along with his team. The informant identified the person,

who was found to be in possession of 5kgs of ganja for the purpose of

selling. He attempted to escape on seeing the police and the Sub Inspector

of Police apprehended him and enquired. Thereafter, the police explained

the right to be searched before the Gazetted Officer or the nearest

Magistrate. Then, the search consent letter was prepared. Thereafter, search

was conducted in two wheeler bearing Registration No.TN-64-B-8619 FZS

and 5 kgs of ganja was seized and thereby, the first accused committed the

offence under Section 8(c) r/w 20(b)(ii)(B), 25 and 29(1) of NDPS Act.

Thereafter, after preparing the seizure mahazar, the first accused was

arrested and FIR was registered. Then, samples of each 50 grams was taken

and packed in a cover, affixing SHO seal. The balance 4.900 kgms of ganja

was packed in a white colour bag affixing SHO seal and the packets were

signed by the witnesses.

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(ii) Then, the first accused gave confession statement and the same

was recorded in the presence of witnesses. On the confession of the first

accused, the second accused was arrayed as accused in this case. The

contraband recovered from the accused was sent for chemical analysis and

chemical report was received. Thereafter, on 29.07.2019, the second

accused, namely Saba @ Sabarathinam surrendered before the learned

Judicial MagistrateNo.IV Court, Madurai, in Cr.No.396 of 2018 remanded

into Judicial custody in Coimbatore Central Prison.

(iii)After completion of investigation, on 03.08.2019, a charge sheet

was filed. Based on the materials, the Special Court for EC and NDPS Act

Cases, Madurai, framed the charges against the accused for the offence

under Section 8(c) r/w 20(b)(ii)(B), 25 and 29(1) of NDPS Act. The

accused pleaded not guilty and claimed to be tried.

(iv) In order to bring home the guilty of both accused, the prosecution

has examined 3 witnesses as P.W.1 to P.W.3 and marked 13 exhibits as

Ex.P.1 to Ex.P.13. Three Material Objects were marked as M.O.1 to M.O.3.

On behalf of the accused, no oral and documentary evidence was let-in.

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(v) After considering the oral and documentary evidence, the learned

Principal Additional District Judge, Special Court for EC and NDPS Act

Cases, Madurai, rendered the judgment acquitting the second accused on all

the charges levelled against him. So far as the appellant/first accused is

concerned, it is held that the prosecution has proved the guilt against the

first accused under Section 8(c) r/w 20(b)(ii)(B), 25 and 29(1) of NDPS Act,

beyond all reasonable doubt. After hearing the first accused under Section

248(2) Cr.P.C, sentence was imposed on him to undergo Rigorous

Imprisonment for two years and to pay a fine of Rs.10,000/-, in default to

undergo six months Simple Imprisonment for each of the offence.

Aggrieved over the same, the first accused has preferred the present appeal.

4. The learned counsel appearing on behalf of the appellant/first

accused mainly argued on the following points:

(i) Two samples of contraband, which were taken for analysis, did not contain the seal of SHO (Station House Officer);

(ii) The report under Section 57 of NDPS Act does not contain the signature of the officer superior to the SHO. Hence, the prosecution violates Section 57 of the NDPS Act.

Hence, he prayed to allow the appeal by setting aside the conviction and

sentence passed against the appellant/A1.

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5. The learned Additional Public Prosecutor appearing on behalf of

the State made the following submissions:

(i) The first ground raised by the learned counsel for the appellant

that the two samples of contraband, which were taken for analysis, did not

contain the seal of SHO (Station House Officer) is concerned, this point has

already been raised by the appellant even before the trial Court as his

defence. The trial Court held that the seizure mahazar does not contain the

seal of SHO on the two samples. However, it is observed that the seal was

placed on the parcel contained remaining portion of ganja weighing 4.900

grams, but it was omitted to place in the seizure mahazar. Such omission

was alone considered by the trial Judge as minor deviation. The trial Judge

also held that the the sample did contain the seal of SHO and the said fact

has been corroborated with the evidence of P.W.1 and P.W.2. Hence, the

above point cannot deserve as a ground for this appeal.

(ii) Insofar as the second ground is concerned, the Special Court for

EC and NDPS Act Cases, Madurai, observed that the compliance of Section

57 of the NDPS Act is not mandatory and hence, it will not vitiate the

proceedings.

6. Apart from that, the learned Additional Public Prosecutor

submitted that in this case, the prosecution clearly proved the case through

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evidence and contemporaneous documents beyond reasonable doubt and

therefore, no interference is warranted by this Court. He prayed for

dismissal of this appeal.

7. This Court gave its anxious consideration to the submissions made

on either side and carefully perused the materials available on record.

8. It is a case of seizure of 5kgs of ganja from the appellant/first

accused based on the secret information on 27.06.2019 at 12.00 hours

received by P.W.2-Sub Inspector of Police. The said information was

reduced in writing and forwarding the same to his immediate superior

officer, P.W.3 Inspector of Police, P.W.2 along with his team proceeded to

the scene of occurrence, where the informant identified the first accused,

P.W.2 has secured the first accused, who was found to be in possession of

5kgs of ganja. After informing the first accused with regard to the right to

be searched, the recovery was made and two samples were taken for

analysis and the sample cover was sealed with SHO seal. The seizure is

marked as Ex.P.3. P.W.1-Village Administrative Officer, Tr.G.Suruli

Andavar and his Assistant Tr.Velmurugan and Sub Inspector of Police

Tr.Arun are the witnesses to the same. Thereafter, the appellant/A1 was

arrested and FIR was registered. On the confession of the first accused, the

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second accused was arrayed as accused in this case. After completion of

investigation, charge sheet has been filed. The trial Court after framing the

charges and explained the accused, who pleaded not guilty and claimed to

be tried. The trial Judge concluded that the prosecution has proved the case

against the appellant/A1 beyond any reasonable doubt and convicted him

for the offences aforesaid and sentenced him to undergo Rigorous

Imprisonment for two years and to pay a fine of Rs.10,000/-, in default to

undergo six months Simple Imprisonment for each of the offence.

9. Though the learned counsel appearing for the appellant pointed out

that two samples of contraband, which were taken for analysis, did not

contain the seal of SHO (Station House Officer), the trial Judge observed

that the seal was placed on the parcel contained remaining portion of ganja

weighing 4.900 grams, but it was omitted to place in the seizure mahazar.

Such omission was alone considered by the trial Judge as minor deviation.

The trial Judge also held that the the sample did contain the seal of SHO and

the said fact has been corroborated with the evidence of P.W.1 and P.W.2.

With regard to the violation of provisions under NDPS Act, the trial Judge

has observed that the compliance of Section 57 of the NDPS Act is not

mandatory and hence, it will not vitiate the proceedings and it is correct.

Hence, the points raised by the appellant/A1 are very minor in nature and

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not much significant to reject the prosecution case. Thus, the evidence

adduced by the prosecution proves beyond doubt the recovery of ganja from

the appellant. Further, no plausible explanation is offered by the accused/A1

for the possession of ganja. Hence, the act of the appellant attracts

punishment under Section 8(c) r/w 20(b)(ii)(B), 25, 29(1) of NDPS Act.

10. At this juncture, the learned counsel appearing for the appellant/

first accused submitted that the appellant/first accused has been in prison,

though the appellant was enlarged on bail, as he was arrested and remanded

in some other case. But, the trial Judge has ordered set-off under Section

428 Cr.P.C only between the period from 27.06.2019 to 03.06.2020.

11. Even though the appellant has been in judicial custody with

regard to some other case, he had been produced during the trial only on PT

warrant. As the accused had been released on bail in this case, there was no

necessity to remand him in this case by the trial Judge. Since the

appellant/A1 was not in custody in connection with the present case, the

period of detention undergone by him in another case cannot be set off

against the sentence imposed in this case.

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12. Since the appellant was arrested in connection with some other

case, it would have been prudent on the part of the prosecution to file an

application seeking for cancellation of bail. But, the prosecution alo failed

to take such step. Though the appellant obtained the bail order, there is no

practical benefit, as he has been arrested and kept under judicial custody in

some other case. The learned counsel also submitted that the appellant has

served the sentence for a period of thirteen months till now.

13. Considering the above stated facts and also considering the fact

that the appellant could not avail the benefit of bail order, as he has been

under judicial custody in some other case, I am inclined to give the relief to

the appellant by modifying the sentence of imprisonment imposed on him

by the trial Judge.

14. Accordingly, the sentence imposed by the learned Principal

Additional District Judge, Special Court for EC and NDPS Act Cases,

Madurai, as against the appellant/A1 is hereby modified as under:

(i) The period of sentence is reduced to sentence already undergone

by the appellant/A1 in prison for this case. The appellant/A1 is directed to

be set at liberty unless his presence is required in some other case/

proceedings.

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(ii) The appellant/A1 shall pay the fine amount of Rs.10,000/-

(Rupees Ten Thousand only), in default, he shall undergo further six months

of Simple Imprisonment for each of the offence.

15. In fine, this Criminal Appeal is partly allowed. Consequently,

connected Miscellaneous Petition is closed.

05.06.2025 Index : Yes/No Internet:Yes/No NCC : Yes/No. Rmk

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1.The Principal Additional District Judge, Special Court for EC and NDPS Act Cases, Madurai.

2.The Inspector of Police, Keerathurai Police Station, Madurai District.

3. The learned Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

4.The Superintendent of Police, Central Prison, Vellore.