Madras High Court
Paraman vs The State Rep By on 15 May, 2025
Crl.A.(MD).No.12 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 16.12.2024
Pronounced On : 15 .05.2025
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
Crl.A.(MD).No.12 of 2021
1.Paraman
2.M.Pandian
3.Shaik Alauddin ... Appellants/Accused No.1 to 3
Vs.
The State rep by,
The Intelligence Officer,
Narcotics Control Bureau,
Madurai Sub-Zone,
Madurai.
NCB F.No.48/1/03/2017/NCB/MDU
... Respondent/Complainant
PRAYER : Criminal Appeal has been filed under Section 374 of the
Criminal Procedure Code, to set aside the conviction and sentence passed in
C.C.No.389 of 2017 (NCB F.No.48/1/03/2017/NCB/MDU) by judment
dated 22.10.2020 on the file of the Principal Special Court for EC & NDPS
Act Cases, Madurai.
Page 1 of 36
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Crl.A.(MD).No.12 of 2021
For Appellant : Mr.B.Pandiarajan for A1
Mr.G.Murugendran for A2
Mr.M.Jegadeesh Pandian for A3
For Respondent : Mr.C.Arulvadivel @ Sekar
Special Public Prosecutor for NCB Cases
JUDGMENT
The appellants/A1 to A3 in C.C.No.389 of 2017 on the file of the
Principal Special Court for EC & NDPS Act Cases, Madurai, have filed this
appeal, challenging the conviction and sentence imposed against them on
22.10.2020, wherein, they were convicted for the offence under Section 8(c)
r/w 20(b)(ii)(C), 28 and 29 of the NDPS Act for the illegal possession and
transportation of 150 kg of ganja.
2.The brief facts of the case as follows:
2.1. 22.06.2014, at 05.00 p.m, P.W.1, Intelligence Officer, NCB,
Madurai, received a secret information from the informer about the illegal
transportation of huge quantity of ganja from Andhra Predesh to Tamil Nadu
in a Car bearing Reg.No.TN-39-BQ-0429 and the accused would take rest at
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Maharaja Hotel situated opposite to the Mattuthavani Bus Stand, Madurai.
He received the said information and recorded it and informed the same to
his Immediate Superior, P.W.2 through telephone and got permission.
Thereafter, P.W.1 and officers along with P.W.3, independent witness went
to the spot with necessary equipment and mounted surveillance and at about
05.15 p.m, the said car arrived at that place. P.W.1 and his team intercepted
the said car and introduced themselves as officers of NCB and informed
about their right to be searched before the Judicial Magistrate or the
Gazetted officer as required under Section 50 of the NDPS Act. The
appellants consented to conduct the search by the officer himself and hence,
P.W.1 made search in the car and found 150 kg of ganja in 71 pockets. They
recovered the same after following the proceedure and kept the same in
three nylon gunny bags and took samples of (each 25 grams) P1, P2 and P3
from each nylon gunny bag and properly sealed the same and also sealed the
remaining contraband. Thereafter, they conducted personal search on the
appellants after satisfying the requirement under Section 50 of the Act and
recovered a cell phone sim card and cash. Thereafter, they summoned the
accused under Section 67 of the NDPS Act. They agreed to come along with
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P.W.1 and they were taken by NCB officers to their office on 22.06.2017 at
10.00 p.m. Thereafter, they gave statement under Section 67 of the NDPS
Act. After that, all the appellants were arrested and the same was duly
intimated to their relatives. P.W.1 handed over the accused along with
contraband and a detailed report under Section 57 of NDPS Act to P.W.2.
P.W.2 remanded the accused along with contraband and a case was
registered against the appellants in NCB F.No.48/1/03/2017/NCB/MDU for
the offence under Section 8(c) r/w 20(b)(ii)(C), 25, 27(A), 28 & 29 of
NDPS Act. After completing all the formalities, the learned Judicial
Magistrate remanded the appellants. Thereafter, P.W.4 conducted the
investigation and filed the complaint before the Principal Special Court for
EC & NDPS Act Cases, Madurai, and the same was taken on file in C.C.No.
389 of 2017.
2.2. The learned trial Judge issued summons to the accused and on
their appearance, served the copies under Section 207 Cr.P.C. and framed
the necessary charges and questioned the accused. The accused pleaded not
guilty and stood for trial.
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2.3. The prosecution, to prove the case examined P.W.1 to P.W.5
and exhibited 47 documents as Ex.P.1 to Ex.P.47 and produced 26 material
objects as M.O.1 to M.O.26. The learned trial Judge questioned the accused
under Section 313 of Cr.P.C., proceedings by putting the incriminating
evidence available from the evidence of prosecution witnesses and
documents. The accused denied the same as false and specifically stated that
when they were proceeding towards Madurai, there was mechanical defect
in the car and the car driver, A3 was directed to come to Madurai, and after
repairing the car A1 and A2 reached Maharaja Hotel, Madurai. After
repairing the car, when A3 was proceeding towars Madurai, some third
person travelled in the car and the third person put the ganja pockets
without knowledge of A3 and thereafter, they got dropped at Mattuthavani
Bus Stand and they have no knowledge about the contraband in the car.
Thereafter, the case was posted for examination of the witnesses on the side
of the appellant. On the side of the defence, no one was examined as witness
and no document was marked.
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2.4. The learned trial Judge after considering the oral and
documentary evidence, convicted the accused for the offence under Sections
8(c) r/w 20(b)(ii)(c), 28 and 29 of the NDPS Act, and sentenced them to
undergo 10 years Rigorous Imprisonment (3 counts) each and to pay a fine
of Rs.1,00,000/- (Rupees One Lake only) (3 counts) each in default, to
undergo, 6 months Imprisonment (3 counts) each for the offence under
Section 8(c) r/w 20(b)(ii)(C), 28 and 29 of the NDPS Act.
3. Challenging the same, present appeal has been filed.
4. Even though one appeal was filed, the appellants appeared
through three different counsel. Thiru.B.Pandiarajan, learned counsel
appeared on behalf of the first appellant/A1, Thiru.G.Murugendran, the
learned counsel appeared on behalf of the second appellant/A2, and
Thiru.M.Jegadeesh Pandian, learned counsel appeared on behalf of the
third appellant/A3 and jointly made the following submissions:-
4.1. Without conviction under Section 25 of the NDPS Act, the
conviction and sentence under Sections 8(c) r/w 20(b)(ii)(C), 28 and 29 of
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the Act with the allegation that they were found in possession of huge
quantity of ganja in the car is not legally maintainable.
4.2. According to the prosecution, the second appellant/A2 was
the owner of the Car. To prove the same, no evidence was adduced.
4.3. The learned trial Judge acquitted the appellants under
Sections 25 and 27(A) of the Act, and convicted them for the offence under
Sections 8(c) r/w 20(b)(ii)(C), 28 and 29 of the Act which is not legally
maintainable. More interestingly, the learned trial Judge convicted the
appellants for the offence under Section 29 of the Act also. But, there was
no evidence adduced to prove the conspiracy between the appellants to
convict the accused under Section 29 of the Act.
4.4. The conviction under Section 28 of the Act is not made out
when there is specific finding and conviction and sentence under Section
8(c) r/w 20(b)(ii)(C) of the Act. Therefore, he seeks to set aside the
impugned judgment on legal aspects.
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4.5. The complaint given by P.W.4 is not maintainable. He is not
an intelligence officer. The learned counsel produced the notification of the
Government dated 27.09.1989. On the basis of the notification, he stated
that only officer 'of and above the rank of inspector' should have filed
complaint. Therefore, he seeks to set aside the conviction and sentence
passed by the learned trial Judge.
4.6. As per Tofan singh Vs. State of Tamil Nadu reported in 2021
14 SCC 1, statement recorded by P.W.1 under Section 67 of the Act is
inadmissible. The learned trial Judge committed error in convicting the
appellants on the basis of the statement under Section 67 of the Act.
4.7. According to the prosecution, Ex.P.2, mahazar was prepared
in English and the same was read over to the appellants in their known
language, but no evidence was adduced to show that the same was read over
to that accused. More particularly, one of the accused is uneducated and
illiterate and he put his thumb impression.
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4.8. The prosecution miserably failed to prove the compliance
under Section 42 of the Act. Ex.P.1 is not a original document. It is only a
Xerox copy. Therefore, it is the suspicious document. Hence, strict
compliance of Section 42 of the Act, is not correct.
4.9. There was no compliance under Section 52 A of the NDPS
Act.
4.10. The learned trial Judge committed error in holding that
Section 42 of the Act was not applicable to the present case on the ground
that the recovery was made in the public place and the same was against
the law laid down by the Hon'ble Supreme Court in the case of Boota Singh
and Others Vs. State of Haryand reported in (2021) 19 SCC 606.
4.11. The evidence of P.W.3 is unbelievable evidence and his
presence in the occurrence place itself is doubtful.
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4.12. The prosecution failed to prove the conscious possession of
the contraband in the car. In the questioning under Section 313 Cr.P.C., they
specifically explained that some unidentified person travelled in the car and
they would have kept the contraband in the car without knowledge of A3.
Therefore, the conscious possession was not established.
4.13. The explanation given by the accused during 313 Cr.P.C.,
questioning is plausible and the same was not considered by the learned trial
Judge in proper manner. In all aspects, the prosecution miserably failed to
prove the case and hence, he seeks acquittal.
4.14. To support their contentions, they have relied the following
precedents:-
i) Mohinder Singh Vs. State of Punjab
reported in (201) 11 SCC 570
ii) Mohd.Aslam Khan Vs. Narcotics Control
Bureau and Another reported in (1996) 9 SCC 462
iii) Oom Prakash Alias Baba Vs. State of
Rajasthan reported in (2009) 10 SCC 632
iv) State Through Narcotics Control Bureau
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Vs. Kulwant Singh and batch reported in (2003) 9 SCC
v) N.Uganchand Kumawat Vs. The Insepctor
of Police, NIB-CID, Dindigul in Crl.A(MD)No.551 of
vi) Mohammed Khalid and Another Vs. The
State of Telangana in Crl.A(MD)No.1610 of 2023
v) Lakshmi Vs. The state in Crl.A(MD)No.
143 of 2020 (24.10.1997)
5. Mr.C.Arul Vadivel @ Sekar, learned Special Public
Prosecutor for State made the following submissions:-
5.1. The recovery was made from the car in the public place.
Therefore, the learned trial Judge correctly held that Section 43 of the Act
alone is applicable. The notification relied by the learned counsel for the
appellants itself, states that 'of and the above rank of the Inspector'.
Therefore, P.W.4 is a competent officer and therefore, the said contention of
the learned counsel for the appellants that the complaint was made by the
incompetent person is not legally correct. The judgment of the Hon'ble
Supreme Court in Tofan singh was delivered on 29.10.2020. There was no
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reference about the applicability of retrospective operation. Therefore, the
said principle is not applicable to the already decided cases. Hence, the
statement recorded under Section 67 of the Act is admissible.
5.2. The learned Special Public Prosecutor read through the entire
judgment of the Tofan Singh. His case is that the statement recorded under
Section 67 of the Act by the officer is admissible. The independent witness
P.W.3 was examined and he was also subjected to incisive cross-
examination, and nothing was elicited to disbelieve his evidence. P.W.1 also
clearly deposed about the recovery. Once possession of the contraband from
the vehicle and the presence of the appellants in the said car was clearly
proved, the conviction and sentence under Section 8(c) r/w 20(b)(ii)(C) of
the Act is clearly made out. P.W.1 received the information and he reduced it
in writing and submitted the same immediately to P.W.2. P.W.2 also clearly
deposed about the receipt of information. In the said circumstances, the
submission of the learned counsel for the appellants that non-production of
the notes taken for the recording of the information is immaterial. Law
insists to inform to the higher officer in writing and the same was to be
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informed within 72 hours. Therefore, Section 42 of the Act was clearly
complied with and there is no infirmity in the judgment of the learned trial
Judge.
5.3. There is no bar to convict the appellants under Sections 8(c)
r/w 20(b)(ii)(C), 28 and 29 of the Act after acquitting the appellants from
the offence under Sections 25 and 27(A) of the Act. Each Section is an
independent offence. Once the conscious possession was established by the
prosecution, the presumption under Sections 54 and 35 of the Act comes
into operation. Conscious possession was clearly proved through P.W.1 and
P.W.3 and entire contraband was seized and properly produced before the
Court below and the proper godown receipt also was marked. Hence, the
prosecution clearly proved the ingredients of the offence under Sections
8(c) r/w 20(b)(ii)(C), 28 & 29 of the Act to convict the appellants.
5.4. The company of the three accused with huge quantity of
contraband itself is a strong circumstance to prove the conspiracy.
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5.5. Apart from that, statement under Section 67 of the Act
contains the mode of conspiracy to bring the contraband from Andra
Predesh. Therefore, in all aspects, the prosecution clearly proved the case
and the learned trial Judge correctly convicted the appellants for the offence
under Sections 8(c) r/w 20(b)(ii)(C), 28 and 29 of the NSDPS Act.
5.6. This Court considered the rival submissions and perused the
records available on record and also the precedents relied upon by them.
6. The question arising for consideration in this case is whether
the prosecution has established the case beyond reasonable doubt against
the appellants and the conviction and sentence imposed by the learned trial
Judge against the appellants can be sustained or not?
7. Discussion on the competent officer:-
7.1. According to the learned counsel for the appellants, as per
notification dated 27.09.1989. P.W.4 is not a competent officer. According
to the counsel, only above the rank of the Inspector, should have filed the
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compliant. To appreciate the said contention, this Court has extracted the
notification which reads as follows:-
MINISTRY OF FINANCE
(Department of Revenue)
ORDER
New Delhi, the 27th September 1989
S.O.763(E):-In exercise of the powers
conferred by clause (d) of sub-Section (i) of section 86A
of the Narcotic Drugs and Psychotropic Substance Act,
1985 (61 of 1985), the Central Government hereby
authorizes the officers of and above the rank of
Inspector in the Department of Customs, Central Excise,
Narcoties, Revenue Intelligence, Central Economic
Intelligence Bureau and the Narcotics Control Bureau
under the Ministry of Finance, Government of India for
filing of complaints relating to an offence under the said
Act before Special Courts.
7.2.1. In the above said notification, it is clear that 'of and above
the rank of Inspector'. Therefore, the submission of the learned counsel for
the appellants that only the officer above the rank of Inspector has to file
complaint is misconceived. When the similar argument was made before
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this Court in Crl.A(MD)No.551 of 2021, it was rejected by this Court, on
29.09.2023. Therefore, the submission of the learned counsel for the
appellants that the complaint was not made by the competent person is not
accepted.
7.2.2. P.W.4 is the competent person and correctly laid the
compliant under Section 36 (A) of the Act for the offence under Section 8(c)
r/w 20(b)(ii)(C), 27(A), 28 & 29 of NDPS Act and the same was correctly
appreciated by the learned trial Judge in C.C.No.389 of 2017. Therefore,
there is no merit in the contention of the learned counsel for the appellants
that the complaint is not maintainable.
8. Proof of Recovery:-
8.1. According to the prosecution, P.W.2 & his team and P.W.3
intercepted the vehicle. P.W.1 clearly deposed about the recovery of huge
quantity of the contraband in 71 pockets. P.W.3, the independent witness
also deposed about the recovery of the said contraband. Even in the
cross-examination, he reiterated the statement that the accused persons were
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occupants in the car and the contraband was recovered from the car. This
Court finds no material discrepancies between the evidence of P.W.1 and
P.W.3. All the contemporaneous documents were duly prepared and the
entire contraband was produced before the Court at the time of remand
itself. Thereafter, it was properly kept in the godown. To prove the same,
godown receipt was also marked.
8.2. The accused gave an explanation that some third party
planted the contraband in the said car which is unacceptable. From the
statement recorded under Section 313 Cr.P.C., the presence of accused in the
scene of occurrence and the recovery of contraband is clearly proved.
9. Discussion on Section 42 of the Act:-
9.1. 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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9.2. Section 42 of the Act and Section 41 of the Act mandate 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.
9.3. As per the Section 42 of the Act, if 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:-
“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
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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.
(c) In other words, the compliance with the
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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
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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.
9.4. In this case, P.W.1 received the secret information and
reduced it in writing under Ex.P.1 and informed the same to his immediate
superior P.W.2. P.W.2 came into box and deposed about the receipt of the
said information. Ex.P.1 clearly mentioned about the receipt of information
by P.W.2. But, the submission of the learned counsel for the appellants that
P.W.1 in his evidence deposed that he has not produced the information,
which was reduced in writing and he only sent the typed copy of the
information to P.W.2. The learned counsel relied the following sentence of
P.W.1, which was deposed during cross examination:-
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ehd; Kjypy; ifg;gl vOjpa jftiy vd;Dila
cah; mjpfhhpf;F ehd; mDg;gtpy;iy vd;why; rhpjhd;.
9.5. It is settled law that the entire evidence of the witness is to be
taken into consideration to arrive a finding on a fact, in this case, P.W.1
received the information and reduced the same in writing and thereafter, he
typed the information and sent the same to P.W.2. When the evidence of
P.W.1 amply proved the compliance under Section 42 of the Act, there is no
necessity to produce the other document namely, which he recorded in hand.
The requirements of law as per Section 42 of the Act and Karnail Singh case
is that he should record the information in writing and submit same to the
higher official. Apart from that, Section 42 of the Act clearly stated that it
should reach within 72 hours from the time of receipt of information and the
same has rightly reached and it was also deposed by P.W.2. In view of the
said fact, this Court finds that there is compliance under Section 42 of the
Act. Hence, the submission of the learned counsel for the appellants that
there is no compliance of Section 42 of the Act is not accepted.
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10. Applicability of Tofan Singh Case :-
10.1. The learned Special Public Prosecutor submitted that Tofan
Sing case was delivered on 29.10.2020. There was no specific reference
about the applicability of retrospective operation. In the said circumstances,
it is well settled law that the precedent is applicable only to the prospective
cases on the principle of 'prospective over ruling'. It is well known that the
Hon'ble Supreme Court in the year 1967, in the case of Golak Nath Vs.
State of Punjab reported in AIR 1967 SC 1643 adopted the doctrine of
prospective over ruling as expounded by the Hon'ble U.S., Supreme Court.
The said application of the principle of the prospective over ruling adopted
by the Hon'ble Supreme Court in “Golak Nath” case also was affirmed by
the larger Bench of the Hon'ble Supreme Court in Kesavanatha Bharathi
case. The said principle also was reiterated by the Hon'ble Supreme Court in
a line of judgments and finally in the Constitution Bench of the Hon'ble
Supreme Court in the case of ECIL v. B. Karunakar, reported in 1993 (4 )
SCC 727 has held as follows:
“73. It would, thus, be clear that the Supreme
Court of the United States of America has consistently,
while overruling previous law or laying a new principle,
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made its operation prospective and given the relief to the
party succeeding and in some cases given retrospectively
and denied the relief in other cases. As a matter of
constitutional law retrospective operation of an
overruling decision is neither required nor prohibited by
the Constitution but is one of judicial attitude depending
on the facts and circumstances in each case, the nature
and purpose the particular overruling decision seeks to
serve. The court would look into the justifiable reliance on
the overruled case by the administration; ability to
effectuate the new rule adopted in the overruling case
without doing injustice; the likelihood of its operation
whether substantially burdens the administration of
justice or retards the purpose. All these factors are to be
taken into account while overruling the earlier decision
or laying down a new principle. The benefit of the
decision must be given to the parties before the Court
even though applied to future cases from that date
prospectively would not be extended to the parties whose
adjudication either had become final or matters are
pending trial or in appeal. The crucial cut-off date for
giving prospective operation is the date of the judgment
and not the date of the cause of action of a particular
litigation giving rise to the principle culminating in the
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overruling decision. There is no distinction between civil
and criminal litigation. Equally no distinction could be
made between claims involving constitutional right,
statutory right or common law right. It also emerges that
the new rule would not be applied to ex post facto laws
nor acceded to plea of denial of equality. This Court
would adopt retroactive or nonretroactive effect of a
decision not as a matter of constitutional compulsion but
a matter of judicial policy determined in each case after
evaluating the merits and demerits of the particular case
by looking to the prior history of the rule in question, its
purpose and effect and whether retroactive operation will
accelerate or retard its operation. The reliance on the old
rule and the cost of the burden of the administration are
equally germane and be taken into account in deciding to
give effect to prospective or retrospective operation.
10.2. Following the same, the Hon'ble Supreme Court in the case
of Sonu v. State of Haryana reported in 2017 (8 ) SCC 570 at page 589 has
held as follows:
“40. This Court did not apply the principle of
prospective overruling in Anvar case [Anvar P.V. v. P.K.
Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 :
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(2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] . The
dilemma is whether we should. This Court in K. Madhava
Reddy v. State of A.P. [K. Madhava Reddy v. State of A.P.,
(2014) 6 SCC 537 : (2014) 2 SCC (L&S) 305] held that
an earlier judgment would be prospective taking note of
the ramifications of its retrospective operation. If the
judgment in Anvar [Anvar P.V. v. P.K. Basheer, (2014) 10
SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24
: (2015) 1 SCC (L&S) 108] is applied retrospectively, it
would result in unscrambling past transactions and
adversely affecting the administration of justice. As Anvar
case [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 :
(2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1
SCC (L&S) 108] was decided by a three-Judge Bench,
propriety demands that we refrain from declaring that the
judgment would be prospective in operation. We leave it
open to be decided in an appropriate case by a three-
Judge Bench. In any event, this question is not germane
for adjudication of the present dispute in view of the
adjudication of the other issues against the accused.”
10.3. The same was reiterated by the Hon'ble Supreme Court in
various judgments. Hence, this Court agrees with the submission of the
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learned Special Public Prosecutor that the Tofan Singh case is applicable
prospectively and therefore, in this case, the statement recorded under
Section 67 of the NDPS Act, before the decision of 'Tofan Singh' is
admissible to prove the conspiracy, recovery and guilty mind of the accused
to transport the huge quantity of the contraband with guilt intention. This
Court already made a detailed discussion about the evidence of P.W.1 and
P.W.3 relating to the conscious possession of the appellants. The same was
corroborated by the statement recorded under Section 67 of the Act by P.W.
1. It is settled law that the entire evidence of the witness is to be taken into
consideration to arrive a finding on a fact. In this case, P.W.1 received the
information and reduced the same in writing and thereafter, he typed the
information and sent the same to P.W.2. When the evidence of P.W.1 amply
proved the compliance under Section 42 of the Act, there is no necessity to
produce the other document namely, which he recorded in hand. The
requirements of law as per Section 42 of the Act and Karnail Singh case is
that he should record the information in writing and submit same to the
higher official. Apart from that, Section 42 of the Act clearly states that it
should reach within 72 hours from the time of receipt of information and the
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same has rightly reached and it was also deposed by P.W.2. In view of the
above, this Court finds that there is compliance under Section 42 of the Act.
Hence, the submission of the learned counsel for the appellants that there is
no compliance of Section 42 of the Act is not accepted.
11. Discussion on the explanation under Section 313 Cr.P.C :-
11.1. The appellants gave the following explanation during the
questioning under Section 313 Cr.P.C:-
“During enquiry under Section 313(1)(b)
Cr.P.C., all the accused persons filed the statements
separately. In their statements, they have specifically stated
that on 22.06.2017 both A1 and A2 were coming to
Madurai by engaging a car, driven by third accused.
Further, they have stated that when they were nearing
Vadipatti, the car was stopped due to mechanical defect.
Due to this unexpected event both A1, A2 reached Madurai
through bus, asking A3 to come over to Madurai after
rectifying, the mechanical defect in the car. Thereafter,
according to their further defence, when |A3 was taking tea
in a Bakery on the way to Madurai, some persons had
approached him with gunny bags and requested for lift;
that A3 also agreed to drop them with luggage on payment
of some fair.”
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11.2. The said explanation is stage managed one and no record
was produced to show that the car broke down due to mechanical defect and
the same was repaired and A3 reached the occurrence place independently.
It is unbelievable story when three persons were secured by P.W.1 and P.W.3
simultaneously and they were found in the car with the conscious
possession of the contraband. Therefore, answering under Section
313 Cr.P.C., is false and hence, this Court is not inclined to accept the case
of the appellants.
12. Therefore, the judgments relied by the learned counsel for the
appellants in this aspects is not applicable to the present case.
13. Discussion on non-compliance of Section 52A of the NDPS
Act:-
13.1. In this case, P.W.1 seized the huge quantity of 150 kg of
ganja. The said huge quantity of ganja was immediately produced before the
learned Judicial Magistrate at the time of the remand itself. The learned
Judicial Magistrate verified the same and thereafter, returned to the
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department to keep in safe custody. The entire contraband was kept in the
godown of NCB. The godown receipt was duly produced before the Court
and the same was marked as Ex.P.21. The entire contraband was also
marked as MO.16 to MO.18 at the time of the trial. All the marked
contraband were properly sealed and found intact. In the above
circumstances, the non-compliance of Section 52A of the Act, is not
material. The Hon'ble Supreme Court in the case of Bharat Aambale Vs.
The State of Chhattisgarh reported in 2025 INSC 78, has held as follows:-
“(V) Mere non-compliance of the procedure
under Section 52A or the Standing Order(s) Rules
thereunder will not be fatal to the trial unless there are
discrepancies in the physical evidence rendering the
prosecution's case doubtful, which may not have been
there had such compliance been done. Courts should
take a holistic and cumulative view of the discrepancies
that may exist in the evidence adduced by the
prosecution and appreciate the same more carefully
keeping in mind the procedural lapses.
((vI) If the other material on record adduced by
the prosecution, oral, or documentary inspires confidence
and satisfies the court as regards the recovery as-well as
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conscious possession of the contraband from the accused
persons, then even in such cases, the courts can without
hesitation proceed to hold the accused guilty
notwithstanding any procedural defect in terms of Section
52A of the NDPS Act.
(IX) The initial burden will lie on the accused to
first lay the foundational facts to show that there was non-
compliance of Section 52A, either by leading evidence of
its own or by relying upon the evidence of the prosecution,
and the standard required would only be preponderance
of probabilities.
(X) Once the foundational facts laid indicate
non-cmpliance of Section 52A of the NDPS Act, the onus
would thereafter be n the prosecution to prove by cogent
evidence that either(i) there was substantial compliance
with the mandate of Section 52A of the NDPS Act OR (ii)
satisfy the court that such non-compliance does not affect
its case against the accused, and the standard of proof
required would be beyond a reasonable doubt.”
13.2. Further, another judgment of the Hon'ble Supreme Court in
Narcotics Control Bureau Vs. Kashif reported in 2024 NSC 1045, has held
as follows:-
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“24. Section 52A was inserted only for the
purpose of early disposal of the seized contraband drugs
and substances, considering the hazardous nature,
vulnerability to theft, constraint of proper storage space
etc. There cannot be any two opinions on the issue about
the early disposal of the contraband drugs and
substances, more particularly when it was inserted to
implement the provisions of International Convention on
the Narcotics Drugs and Psychotropic Substances,
however delayed compliance or non-compliance of the
said provision by the concerned officer authorised to
make application to the Magistrate could never be treated
as an illegality which would entitle the accused to be
released on bail or claim acquittal in the trial, when
sufficient material is collected by the Investigating Officer
to establish that the Search and Seizure of the contraband
substance was made in due compliance of the mandatory
provisions of the Act.
13.3. In this regard, this Court already made a detailed discussion
in Crl.A(MD)No.551 of 2021 dated 29.09.2023. Hence, this Court is unable
to accept the contention of the learned counsel for the appellants to acquit
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the accused on the ground of non-compliance under Section 52(A) of the
Act.
14. Maintainability of Conviction under Sections 8(c) r/w
20(b)(ii)(C), 28 and 29 of the Act after convicting the appellants from
the offence under Sections 25 and 27(A) of the Act:-
Admittedly, NDPS Act is a Special Act. Each offence is an
independent offence. Therefore, the learned trial Judge convicted the
appellants under Sections 8(c) r/w 20(b)(ii)(C), 25 and 29 of the Act and
acquitted the appellants from the offence under Sections 25 and 27(A) of the
Act. There is no interdependent ingredients for all the offences. Each
Section has different ingredients. In this case, conscious possession of the
appellants was found to be proved and hence, Section 8(c) r/w 20(b)(ii)(C),
of the Act is clearly made out. Further, there is conspiracy between the
accused in carrying the said contraband and hence, Section 29 of the Act
also is clearly made out. Apart from the statement under Section 67 of the
Act, recorded by P.W.1, and from he circumstances discussed above, it is
clear that the accused planned to sell the said huge quantity of the
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contraband and therefore, Section 28 of the Act also is clearly made out.
Section 28 of the Act means, attempt to sell the contraband to various
persons. Therefore, this Court finds no merit in the contention of the learned
counsel for the appellants that the conviction under Section 8(c) r/w 20(b)
(ii)(C), 28 and 29 of the Act, is not legally maintainable after acquitting the
appellants under Sections 25 and 27(A) of the Act.
15. In result, this Court finds that the prosecution clearly proved
all the ingredients of the offence beyond reasonable doubt and hence, this
Court concurs with the conviction and sentence passed by the learned trial
Judge and hence, the appeal is liable to be dismissed.
16. Accordingly, this Criminal Appeal is dismissed and the
conviction and sentence passed by the Principal Special Court for EC &
NDPS Act Cases, Madurai, in C.C.No.389 of 2017 dated 22.10.2020, is
hereby confirmed.
15.05.2025.
NCC :Yes/No
Index :Yes/No
Internet :Yes/No
dss
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To:
1.The Principal Special Court for EC & NDPS Act Cases, Madurai.
2.The Intelligence Officer,
Narcotics Control Bureau,
Madurai Sub-Zone, Madurai.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
4.The Section Officer,
Criminal Section (Records),
Madurai Bench of Madras High Court, Madurai.
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K.K.RAMAKRISHNAN, J.
dss
15.05.2025
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