Madras High Court

Jeyamari vs The State Represented By on 15 May, 2025

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                        Reserved on           :          24.01.2025
                                       Pronounced on          :          15.05.2025


                                                            CORAM

                            THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN

                                  CRL.A(MD).Nos.5, 70 & 340 of 2023 and 851 of 2024
                                                       and
                                       Crl.MP(MD)Nos.11173 & 9622 of 2024


                Jeyamari                                          ... Appellant/Accused No.4
                                                                      (in Crl.A.(MD).No.5 of 2023)

                Kumaravel                                          ... Appellant/Accused No.3
                                                                       (in Crl.A.(MD).No.70 of 2023)

                Kaleeshwaran                                       ... Appellant/Accused No.1
                                                                       (in Crl.A.(MD).No.340 of 2023)

                Ramakrishnan @ Anal Ramar                          ... Appellant/Accused No.2
                                                                      (in Crl.A.(MD).No.851 of 2024)


                                                                  Vs.
                The State represented by,
                The Inspector of Police,
                Keeraithurai Police Station,
                Madurai District.
                (Crime No.4 of 2021)                                    ... Respondent/Respondent
                                                                               Complainant
                                                                              (In all appeals)


                1/19



https://www.mhc.tn.gov.in/judis               ( Uploaded on: 19/05/2025 05:41:53 pm )
                COMMON PRAYER: Criminal Appeals have been filed under Section 374 (2)
                of Criminal Procedure Code & 415(2) of BNSS Act, to call for the records
                relating to the judgment passed in C.C.No.280 of 2021 dated 08.11.2022 on the
                file of the II Additional Special Court for NDPS Act Cases, Madurai, and set
                aside the same and acquit the appellants/A4, A3, A1 & A2.


                                     For appellants         : Mr.G.Karuppasamy Pandian,
                                                             (in Crl.A.(MD).No.5 of 2023)

                                                            : Mr.Subash Babu, Seniour Counsel
                                                               for Mr.M.Chandrabose
                                                             (in Crl.A.(MD).No.70 of 2023)

                                                             : Mr.M.Jegadeesh Pandian,
                                                               (in Crl.A.(MD).No.340 of 2023)

                                                             : Mr.Muthuchharan Sundresh
                                                               (in Crl.A.(MD).No.851 of 2024)

                                     For respondent         : Mr.R.Meenakshi Sundaram
                                                              Additional Public Prosecutor
                                                                (In all appeals)


                                             COMMON JUDGMENT

The appellants/A4, A3, A1 & A2 on the file of II Additional Special

Court for NDPS Act Cases, Madurai, have filed these appeals, challenging the

conviction and sentence imposed against them on 08.11.2022, wherein, they

were convicted for the offence under Section under Sections 8(c) r/w 20(b)(ii)

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2. Since the appellants in all the appeals were arrayed as accused in the

same crime number, these appeals are taken up together for hearing and disposed

of by way of this common judgment.

3.The brief facts of the case as follows:

On 03.01.2021, at about 08.15 a.m, the Sub-Inspector of police,

Keeraithurai Police Station, Madurai District, P.W.3, received the secret

information about the smuggling of Ganja for sale at Keeraithurai area. P.W.3

reduced the same in writting under Ex.P.7 and submitted the same to his Superior

Officer and he also permitted P.W.3 to proceed further in this case. Hence, P.W.3

along with his team members went to the place of occurrence at 08.00 am. At

08.15 a.m, when they were keeping surveillance, P.W.3 and his team found 4

persons, who were coming in 2 two wheelers bearing Reg.Nos.TN-64-U-2270

and TN-59-BP-7740 with two white colour plastic bags. The informant identified

the persons and left the scene of occurrence.They intercepted the appellants and

introduced themselves as police officers and they were 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 accused consented to conduct the search

by the officer himself and hence, P.W.1 conducted search and found two white

https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/05/2025 05:41:53 pm ) colour plastic bags. They opened the bags and each bag contained 15 kg of

ganja. Thereafter, they recovered the contraband after following the proceedure

and took the samples of (50 grams from each bag) S1 & S2 and S3 & S4 and

properly sealed the same. Thereafter, he arrested the appellants. The appellants

also gave confessions and the same were recorded. After that, P.W.3 handed over

the accused along with contraband with a detailed report under Section 57 of

NDPS Act to P.W.4. P.W.4 remanded the accused along with contraband and FIR

was registered in Crime No.4 of 2021 for the offence under Section 8(c) r/w

20(b)(ii)(C), 25 and 29(1) of the NDPS Act, under Ex.P.8. After completing all

the formalities, the learned Judicial Magistrate remanded the appellants.

Thereafter, P.W.5 conducted investigation and filed the final report before the II

Additional Special Court for NDPS Act Cases, Madurai, and the same was taken

on file in C.C.No.280 of 2021. 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.

4. The prosecution, to prove the case, examined P.W.1 to P.W.5 and

exhibited 13 documents as Ex.P.1 to Ex.P.13 and produced 8 material objects as

https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/05/2025 05:41:53 pm ) M.O.1 to M.O.8. The learned trial Judge questioned the accused under Section

313 of Cr.P.C., proceedings by putting the incriminating evidence available from

prosecution witnesses and documents. The accused denied the same as false and

the case was posted for examinationof the witnesses on the side of the

appellants. On the side of the defence, no one was examined and no document

was marked.

5. The learned trial Judge after considering the oral and documentary

evidence, acquitted the appellants from the charge under Sections 25 and 29(1)

of the NDPS Act and convicted them for the offence under Sections 8(c) r/w

20(b)(ii)(C) of the NDPS Act, 1985, and sentenced them to undergo 10 years

Rigorous Imprisonment each and to pay a fine of Rs.1,00,000/- (Rupees One

Lake only) each in default, to undergo, 12 months Simple Imprisonment each for

the offence under Sections 8(c) r/w 20(b)(ii)(C) of the NDPS Act.

6. Challenging the same, present appeals have been filed.

7. Mr.Subash Babu, learned senior counsel for Mr.M.Chandrabose

appearing for the appellant/A3 in Crl.A(MD)No.70 of 2023,

https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/05/2025 05:41:53 pm ) Mr.G.Karuppasamy Pandian, learned counsel appearing for appellant/A4 in

Crl.A(MD)No.5 of 2023, Mr.M.Jegadeesh Pandian, learned counsel for the

appellant/A1 in Crl.A(MD)No.340 of 2023 and Mr.Muthuchharan Sundresh,

learned counsel for the appellant/A2 in Crl.A(MD)No.851 of 2024 have jointly

made the following submissions:-

8. All the counsel in one voice submitted that a false case was registered

by the respondent police. Without any recovery, the respondent police filed the

present case against the appellants by preparing false document and implanting

the contraband. The same is revealed from the non-compliance of the mandatory

provisions of NDPS Act.

9. The requirement under Section 42 of the Act was not complied with.

There was infirmity in the evidence of P.W.1 to P.W.3 relating to the compliance

under Section 42 of the Act.

10. Apart from that, even the admitted case of the prosecution is that a

report under Section 57 of the Act was filed after a lapse of 1 ½ years during the

course of trial and the same was also admitted by the Investigating Officer. The

https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/05/2025 05:41:53 pm ) documents were prepared at the police station and signatures of the accused were

obtained. There confession statement was obtained from A2 and recovery was

made only on the basis of the confession of A2. In Ex.P.5 and Ex.P.6, the

signature of the accused No.1 and 3 did not find place. The learned trial Judge,

acquitted the appellants under Section 25 and 29 of the NDPS Act and no

appeal was filed on the side of the prosecution. Therefore, the case of the

prosecution that all the appellants are said to have conspired and carried the

contraband, which comes under the commercial quantity, is not correct.

11. When the above case of the prosecution was disbelieved by the Court

below, the Court below has no jurisdiction to convict the appellants under

Section 8(c) r/w 20(b)(ii)(c) of the NDPS Act for the possession of commercial

quantity.

12. They further submitted that before registration of the case, the slip,

which was affixed on the material objects, contained the crime number. This

creats doubt over the registration of the case.

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13. In the documents namely, Ex.P.1 to Ex.P.4., there was no mentioning of

the vehicle numbers. In aragraph No.59 of the order of the learned trial Judge it

is found that the charge under Section 29 of the Act was not proved on the

ground that there was no sufficient evidence regarding the ownership of the

vehicle to convict the appellants. In the last line of paragraph, it was stated that

A1 and A4 are said to be related to each other. Therefore, this is a circumstance

that would speak for itself. The said finding is perverse and hence, both counsel

prayed to allow the appeals by setting aside the conviction and sentence imposed

against the appellants.

14.1. The learned Additional Public Prosecutor on instructions and upon

perusal of the records submitted that merely the absence of signature in the

athachi is not a ground to disbelieve the recovery when the signatures of all the

accused found place in the remaining contemporaneous documents. When all the

accused had assembled together in the place of the occurrence along with the

contraband, and when all are related to each other and in the case of joint

recovery of 30 kg of ganja, the conviction imposed against them under Section

8(C) r/w 20(b)(ii)(C) of NDPS Act, is legally sustainable.

https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/05/2025 05:41:53 pm ) 14.2. He further submitted that the lapse on the part of the officer in not

filing report immediately under Section 57 of the Act, is not a ground to acquit

the accused under the grave charge.

14.3. He further submitted that even in the law laid down by the Hon'ble

Supreme Court judgment in Karnail Singh Vs. State of Haryana reported in

(2009) 8 SCC 539, non-compliance of procedure under Sections 42 and 57 of

the Act is not a ground to acquit the accused. In this case, even though there is

compliance of 42 of the Act, there is some procedural lapse in not filing report

under Section 57 of the Act. Therefore, they are not entitled for acquittal. The

procedure under Section 52 of the Act is not an issue since the entire contraband

and all the other things were produced before the Court at the time of the

accused's remand itself. Apart from that, all the accused have criminal

antecedents. Therefore, he prayed for dismissal of the appeals by confirming the

conviction and sentence imposed by the learned trial Judge.

15. This Court considered the rival submissions and also perused the

records and the impugned judgment and the precedents relied upon by the

appellants.

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16. The question arising for consideration in these appeals 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?

17. Discussion of the the role of A2 and A4:-

17.1. According to the prosecution case, all the accused conspired together

to carry the contraband in two bags, each containing 15 kg each and totally 30 kg

in 2 two wheelers for sale. Therefore, the charges were framed under Sections 29

and 25 of the NDPS Act. The learned trial Judge acquitted all the accused from

the above charges and also recorded the following finding:-

“59. In so far as Section 25 and 29(1) of the Act is concerned, this Court holds that since all the four accused were arrested with the contraband and in the two 2-wheelers, the question of Section 29(1) would lose its significance. Further there is no sufficient materials regarding the vehicle and therefore the Court holds that the offence u/s 25 is also not proved. Again there is no question of converting the case from a commercial quantity to medium quantity since they had all come in two 2 wheelers. A1 to A3 are said to be related to each other, and therefore it would speak for itself.”

https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/05/2025 05:41:53 pm ) 17.2. Further, even as per the prosecution case, all the accused conspired

together and hence, they registered a case under Section 29 of NDPS Act. The

following evidence of P.W.3 is relevant in this aspect:-

' 4 vjphpfSk; Tl;lhf nrh;e;J fQ;rhit flj;jpajhy;

                             xnu tHf;fhf gjpt[ bra;njhk;'

                                    '1>2    vjphpfsplk;    15     fpnyht[k;>       3>      4    vjphpfsplk;   15
                             fpnyht[k;>    jdpj;jdpahf     ifg;gw;wg;gl;Ls;sJ                  vd;why;   rhpjhd;.
                             2 mst[fSk; xnu ,lj;jpy; itj;J ifg;gw;wg;gl;lJ.'

17.3. In the said circumstances, this Court is of the considered view that

after acquitting all the accused under Section 29 of NDPS Act, the conviction

under Section 8(c) r/w 20(b)(ii)(C) of NDPS Act, by clubbing both the

quantities, which were recovered from two pairs of accused, is not legally

maintainable when the recovery is made separately and separate athachi were

prepared and acquittal was passed under Section 29 of the Act with specific

finding that there was no conspiracy. Hence, only the accused with concious

possession of the contraband alone is liable to be convicted under Section

Section 8(c) r/w 20(b)(ii)(B) of NDPS Act and they are not liable to be

convicted under Section 8(c) r/w 20(b)(ii)(C) of NDPS Act for the reason that

https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/05/2025 05:41:53 pm ) there was no proof of conscious joint possession. Therefore, this Court finds that

the charge under Section 8(c) r/w 20(b)(ii)(C) of NDPS Act framed against all

the accused and conviction rendered against all the accused for possession of

the commercial quantity is not legally sustainable.

18. Admittedly, there was no recovery from A2 & A4. The officer admitted

as follows:-

'mj;jhl;rpapy;> 2k; vjphpfsplk; K:l;il vJt[k;

ifg;gw;wg;gl;ljhf mj;jhl;rpapy; Fwpg;gplg;gltpy;iy vd;why;

rhpjhd;.'

19. The presence of the accused at the scene of occurrence in the absence

of their signature in the recovery mahazar namely, athachi, is not believable one.

Apart from that, not even confession was recorded from the accused to prove

their presence. If the case of the prosecution is that all the accused were found in

conscious possession of the contraband and the same was recovered, in all

fairness, the police officers should have obtained the signatures of all the

accused in the recovery mahazar. Hence, it is not their case, all the accused

refused to sign the recovery mahazar. Therefore, two legal inferences are

available namely, either the presence of the accused in the place of occurrence is

doubtful or P.W.3, the Search Officer, failed to obtain signatures in the athachi

https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/05/2025 05:41:53 pm ) with the intention to aid the accused to get acquittal from the case. Therefore,

this Court is not satisfied with the material adduced by the prosecution to prove

the presence of A2 and A4 in the occurrence place. Therefore, in the absence of

any recovery from both the accused, this Court is not inclined to concur with the

conviction and sentence imposed against A2 & A4 under Section 8(c) r/w 20(b)

(ii)(C) of NDPS Act.

20. Discussion on the role of A1 and A3:-

20.1. The submission of all the counsel appearing for the appellants that

there was no compliance of Sections 42 & 57 of the Act and also brought out the

discrepancies between the evidence of P.W.1 to P.W.3 relating to the arrest and

recovery. This Court perused the entire evidence. P.W.3 deposed that on

03.01.2021 at about 08.15 a.m, he received the secret information about the

smuggling of ganja at Keeraithurai, Madurai. He reduced it in writting under

Ex.P.7 and also informed to his Immediate Superior. The said evidence is cogent

and also the said Ex.P.7 also contained the acknowledgedment of receipt of the

information by the superior. Therefore, this Court cannot accept the contention

of the learned counsel for the appellant that there was non-compliance of

mandatory requirement under Section 42 of the Act.

https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/05/2025 05:41:53 pm ) 20.2. P.W.3 also deposed that after recovery, arrest of the accused and

registration of FIR, he sent a detailed report to his Immediate Superior under

Section 57 of the NDPS Act, on the same day itself and Ex.P.9 was produced

before the Court at the time of the remand of accused itself. Therefore, this Court

also finds no merit in the contention of the appellant that there was no

compliance of Section 57 of the NDPS Act.

20.3. Except some minor discrepancies in the evidence of P.W.1 and P.W.2

about the recovery of the contraband from A1 and A3, the presence of A1 and A3

is proved through the athachi, where A1 and A3 subscribed their signatures. The

evidence of P.W.1 and P.W.3 relating to the recovery of contraband

independently from A1 and A3 is cogent and believable one. The entire seized

contraband also was produced before the Court along with the remand. The

accused were also identified by the informant. Hence, the prosecution proved the

recovery from A1 and A3 beyond reasonable doubt on the basis of the remaining

material documents. The chemical analysis report also is positive and therefore,

the prosecution proved the separate seizure of 15 kg from A1 and A3. Hence, the

recovery was made only from A1 and A3. Since there is positive finding about

the absence of the conspiracy under Section 29 of the NDPS Act conviction

under Section 8(c) r/w 20(b)(ii)(C) of the Act is not maintainable against A1 &

https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/05/2025 05:41:53 pm ) A3. This Court inclines to set aside the conviction and sentence passed against

A1 ( Crl.A.(MD).No.340 of 2023 ) and A3 ( Crl.A.(MD).No.70 of 2023) and

convict them under Section 8(c) r/w 20(b)(ii)(B).

21. Apart from that the submission of the learned Additional Public

Prosecutor that the appellants have some bad antecedent and some IPC cases are

pending against them is concerned, this Court perused the same and all the cases

against A1 were registered between 2010 – 2016 and A3 has had antecedent for

committing minor offences and that is not a ground to convict A3 under the

grave charge of the possession of the contraband narcotic substance with grave

punishment without proof of foundational facts as stated by the Hon'ble the

Consistution Bench of Supreme Court in Mukesh Singh Vs. State (Narcotic

Branch of Delhi) reported in (2020) 10 SCC 120.

22. As already discussed above, the prosecution miscerably failed to prove

the concious possession of the appellants in Crl.A(MD)No.5 of 2023 and

Crl.A(MD)No.851 of 2024 and also the prosecution miscerably failed to prove

30 kg of ganja in the conscious joint possession of A1 and A3. Therefore, in

view of the acquittal under Section 29(1) of the NDPS Act and the separate

https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/05/2025 05:41:53 pm ) recovery of 15 kg each from A1 and A3 were made, this Court is inclined to

convict the appellants/A1 and A3 under Section 8(c) r/w 20(b)(ii)(B) of NDPS

Act by setting aside the conviction and sentence imposed aginst them for the

offence under Section 8(c) r/w 20(b)(ii)(C) of NDPS Act.

23. Accordingly, the appeals filed by the appellant/A2 in Crl.A(MD)No.

851 of 2024 and the appellant/A4 in and Crl.A(MD)No.5 of 2023 are allowed

and the conviction and sentence imposed against them in C.C.No.280 of 2021

dated 08.11.2022 is hereby set aside and they are set at liberty unless their

presence is required in some other case.

24. Appeals in Crl.A(MD)No.70 of 2023 and Crl.A(MD)No.340 of 2023

are partly allowed on the following terms:-

i) The conviction and sentence passed against the appellant/A1 in Crl.A(MD)No.340 of 2023 and the appellant/A3 in Crl.A(MD)No.70 of 2023 by the impugned judgment dated 08.11.2022 under Section 8(c) r/w 20(b)(ii)(C) of the NDPS Act, is hereby set aside.

                                   ii)   This    Court        convicted         the        appellant/A1    in
                             Crl.A(MD).No.340        of     2023       and       the       appellant/A3    in






https://www.mhc.tn.gov.in/judis                  ( Uploaded on: 19/05/2025 05:41:53 pm )

Crl.A(MD)No.70 of 2023 for the ofence under Section 8(c) r/w 20(b)(ii)(B) of the NDPS Act and sentenced them to undergo 4 years and 5 months Rigorous Imprisonment and to pay a fine of Rs.20,000/- (Rupees Twenty Thousand Only) and in default to undergo 3 months Simple Imprisonment.