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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To
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.
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R.N.MANJULA, J.,
Rmk
and Crl.M.P(MD).No.6772 of 2025
05.06.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/06/2025 07:07:56 pm )
