Madras High Court
D.A.Arun vs The State Represented By on 15 May, 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 31.01.2025
Pronounced on : 15.05.2025
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
Crl.A.(MD).Nos.126 of 2022 and 880 of 2023
D.A.Arun ... Appellant/Accused No.1
( In Crl.A(MD)No. 126 of 2022 )
Ravi ... Appellant/Accused No.2
( In Crl.A(MD)No.880 of 2023 )
Vs.
The State Represented by,
The Intelligence Officer,
Narcotics Control Bureau,
Madurai Sub Zone, Madurai.
(NCB.F.No.48/1/07/2018/NCB/MDU)
... Respondent/Complainant
( In both Appeals )
COMMON PRAYER : Criminal Appeals have been filed under Section
374(2) of the Criminal Procedure Code, to call for the records and set aside
the judgment dated 25.01.2022 made in C.C.No.20 of 2019 on the file of
the I Additional Special Court for NDPS Act Cases, Madurai, and allow the
above Criminal Appeals.
For Appellant : Mr.M.Jegadeesh Pandian
for Mr.K.Kevinkaran
(In Crl.A(MD)No.126 of 2022)
: Mr.M.Sundar
(In Crl.A(MD)No.880 of 2023)
Page No.1/41
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For Respondent : Mr.C.Arul Vadivel @ Sekar
Special Public Prosecutor
(In both Appeals)
COMMON JUDGMENT
The appellants/A1 & A2 in C.C.No.20 of 2019 on the file of
the I Additional Special Court for NDPS Act Cases, Madurai, have filed these
appeals, challenging the conviction and sentence imposed against them on
25.01.2022, wherein, they were convicted for the offence under Section 8(c)
r/w 20(b)(ii)(C) of the NDPS Act r/w 34 IPC and under Sections 8(c) r/w
20(b)(ii)(C) r/w 25 and under Section 8(c) r/w 20(b)(ii)(C) r/w 29 of NDPS
Act, for the alleged illegal possession of 251.500 kg of ganja without having
any valid licence.
2. Since these appeals are arising out of the same occurrence and filed
against the judgment of conviction made in C.C.No.20 of 2019 on the file of
the I Additional Special Court for NDPS Act Cases, Madurai, these appeals
are taken up together for hearing and disposed of by way of this common
judgment.
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3. The brief facts of the case as follows:
3.1. On 11.06.2018, at 05.30 pm, when P.W.1 was working as
Intelligence office, NCB, Madurai, he received a secret information from his
informant about the appellants' illegal possession and transportation of huge
quantity of ganja near Anjaneya Hotel, Latchumipuram Toll Gate,
Kodaikanal to Batlagundu road. He recorded the said information and
reduced it in writting under Ex.P.1 and informed the same to his Immediate
Superior, P.W.3 and got permission. Thereafter, at 10.00 pm, P.W.1, P.W.3 and
other officers went to the spot with necessary instruments along with the
informant and made surveillance. At about 10.10 p.m, they intercepted a
TATA Safari car bearing Reg.No.TN-72-AJ-9000, which was proceeding
towards Batlagundu from Dindigul. P.W.1 found the presence of three
persons in the car and introduced themselves as officers of NCB 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
appellants consented to conduct search by the officer himself and hence,
P.W.1 conducted search in the car in the presence of P.W.2 and other officers.
He found 251.500 kg of ganja in the dicky of the car in 114 parcels. P.W.1
converted the said 114 parcels into 6 gunny bags. Each gunny bag contained
19 parcels and took two samples from each gunny bag were taken and all the
samples were properly sealed and the remaining contraband was also
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properly sealed and produced before the Court. Thereafter, he arrested the
appellants. The appellants also gave confessions and the same were recorded
by P.W.1. P.W.1 brought the accused to the NCB office along with the entire
contraband and sample and registered a case in NCB.F.No.
48/1/07/2018/NCB/MDU for the offence under Sections 8(C) r/w 20(b)(ii)
(C), 25, 27A, 28 and 29(1) of NDPS Act, and prepared a detailed report
under Section 57 of NDPS Act. Following the same, P.W.1 handed over the
custody of the accused to P.W.12 along with the contraband, sample and
report under Section 57 of the Act. Then the accused were produced before
the learned Judicial Magistrate, along with the recovered contraband and
samples taken from the said contraband and with a request to remand them.
After completing all the formalities, the learned Judicial Magistrate
remanded the appellants in judicial custody. Thereafter, P.W.12 conducted
investigation and filed the complaint before the I Additional Special Court
for NDPS Act Cases, Madurai, and the same was taken on file in C.C.No.20
of 2019.
3.2. 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 claimed to be tried.
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3.3. The prosecution, to prove the case examined P.W.1 to P.W.12 and
exhibited 99 documents as Ex.P.1 to Ex.P.99 and produced 27 material
objects as M.O.1 to M.O.27. The learned trial Judge questioned the accused
under Section 313 of Cr.P.C., by putting the incriminating evidence available
from prosecution witnesses and documents. The accused denied the same as
false and false case was registered and the case was posted for examination
of the witnesses on the side of the appellants and on their side D.W.1 to D.W.
3 were examined as witness and documents Ex.D.1 to Ex.D.4 were marked.
3.4. The learned trial Judge after considering the oral and documentary
evidence, acquitted the appellants from the charges under Section 8(c) r/w
20(b)(ii)(C), 27A and 28 of the NDPS Act and convicted them for the offence
under Section 8(c) r/w 20(b)(ii)(C) r/w 34 IPC and Sections 25 & 29 of
NDPS Act 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, 1 year Rigorous Imprisonment each for the offence under
Section 8(c) r/w 20(b)(ii)(C) of the NDPS Act r/w 34 IPC 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, 1 year
Rigorous Imprisonment each for the offence under Section 8(c) r/w 20(b)(ii)
(C) r/w 25 of the NDPS Act and sentenced them to undergo 10 years
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Rigorous Imprisonment each and to pay a fine of Rs.1,00,000/- (Rupees One
Lake only) each in default, to undergo, 1 year Rigorous Imprisonment each
for the offence under Section 8(c) r/w 20(b)(ii)(C) r/w 29 of the NDPS Act
and the sentences were ordered to run concurrently.
4. Challenging the same, the present appeal has been filed.
5. Mr.M.Jegateesh Pandian, the learned counsel for the appellant/A1 in
Crl.A(MD)No.126 of 2022 and Mr.M.Sundar, the learned for the
appellant/A2 in Crl.A(MD)No.880 of 2023 jointly made the following
submissions:-
5.1. The recovery of huge quantity of 251.500 kg of ganja in the car is
not believable one. It is impossible to believe the transportation of huge
quantity of the ganja in the said car.
5.2. Search was made in front of the Anjaneya Hotel and CCTV was
available and the CCTV footages were destroyed by the respondent/NCB
Officer and the same was clearly deposed by D.W.2. The said evidence of
D.W.2 was not properly considered by the learned trial Judge.
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5.3. The non-production of CCTV footages and also the
non-explanation relating to failure of recovery of the said CCTV footages are
material circumstances to disbelieve the evidence of recovery. The
prosecution has not established the strict compliance of Section 42 of the Act.
5.4. Even according to the evidence of P.W.1, the accused were in their
custody at 10.30 p.m on 11.06.2018 and they were remanded in the Court
only at 05.00 p.m on 13.06.2018 and therefore, there was illegal custody of
two days and the same was not properly explained.
5.5. There was genuine doubt over the arrest and recovery of the
contraband. There was no compliance under Section 50 of the Act.
According to the prosecution, the search was made both on the body and of
the car of the appellants and hence, as per the Paramanantham Case, the
compliance of Section 50 of the Act is necessary. Therefore, the entire search
and recovery is not legally valid.
5.6. In this case, the prosecution has not complied with the
requirements under Section 52A of the Act. According to the facts of the
present case, the said requirement is material one.
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5.7. In view of the inconsistencies in the evidence of prosecution about
the recovery of the contraband and as there is a huge difference in quantity
between Ex.P.28 and Ex.P.27, there is a doubt over the recovery of the
contraband from the appellants.
5.8.P.W.12 specifically deposed that he did not know Tamil language.
Therefore, the case of the recovery by informing A1 about the contents of the
document in Tamil language is highly unbelievable.
5.9. According to the appellants, the independent witness P.W.4 is a
planted witness and his evidence is not cogent and trustworthy. He was
examined on 07.11.2020 i.e., after 2 years from the date of the occurrence. In
his chief examination and cross-examination, he stated that, he has not
properly identified the appellants and the ownership of the car was not
properly proved by the prosecution. The prosecution examined P.W.5 to P.W.
10 to prove the possession and occupation of the vehicle on the date of the
occurrence. The evidence of all the witnesses never inspired confidence due
to the inconsistencies in their evidence. Therefore, the conviction under
Section 25 of the NDPS Act is not legally maintainable.
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5.10. None of the document disclosed about the ownership of the car
by the appellant/A1. Therefore, the case of the prosecution that he went to
Andra Pradesh and purchased the contraband is not legally maintainable. The
cell phones of all the accused were recovered. But, no incriminating material
is available in CDR report to connect the accused under Section 29 of the
NDPS Act. But, the learned trial Judge, acquitted the appellant under
Sections 27 and 28 of the NDPS Act and convicted them for the offence
under Sections 8(C) r/w 20(b)(ii)(C), 25 and 29 of the NDPS Act. On the date
of occurrence, the vehicle number stood in the name of one Shankar (P.W.7)
and no legally valid document was produced before the Court to presume the
ownership or the possession of the vehicle by the appellant/A1. The evidence
of P.W.1 and other witnesses is not cogent and their evidence is not
believable as there are material discrepancies between their evidence about
the recovery of the contraband.
5.11. Ex.P.51 is not a primary document. It is only a xerox copy and
the original was not produced. Therefore, the same is inadmissible without
compliance of requirement of Section 63(c) of the Evidence Act. The defence
examined three witnesses. All the three witnesses clearly deposed that there
was doubt over the presence of the appellant/A1 at the scene of occurrence
and he was illegally taken by the police officers at 05.00 p.m itself. The same
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was clearly by the CDR report of the prosecution document itself. Therefore,
the alleged recovery of contraband at 06.30 a.m is false.
5.12. The prosecution has not produced any document to show that the
cell phones, which were recovered from the house the accused, belonged to
them. They have not produced any document to show that the appellants used
these mobile phones. There was no evidence adduced on behalf of the
prosecution to prove that at the material point of time, the cellphone was used
by the appellants in Andra Pradesh.
5.13. Similarly, there was no material was adduced to prove the
withdrawal of amount from the account of one of the accused by the
appellants. The house search was conducted in the presence of one
Gunasekaran. The recovered phone stands in the name of said Gunasekaran.
Therefore, the Investigating Agency, falsely implicated the appellants in the
present case.
5.14. According to the prosecution, the entire seizure was at the night
hours. It was commenced at 05.30 p.m and ended at 04.30 a.m on the next
day. But, none of the witnesses speak about the presence of the light.
Therefore, the arrest and recovery is stage managed one. There was no
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communication from A2's phone to A1's phone. A2 seriously disputed about
the house search. There was no incriminating material available in CDR
report to connect the accused under Section 29 of the NDPS Act. The
appellants' control over the vehicle, is a basic minimum requirement to
convict the appellants under Section 25 of the NDPS Act. Hence, he seeks
acquittal for the appellants.
5.15. To support their contention, the learned counsel for the appellants
in Crl.A(MD)No.126 of 2022 and the learned counsel for the appellant in
Crl.A(MD)No.880 of 2023 relied the following judgments:-
1.2018 SCC Online Pat 906: 2019 Cri LJ (NOC 47)
20: (2018) 4 PLJR 261
2. Ishdan Seikh vs. Union of India (2020) and Ali
Hossain SK @Ali Hussain Seikh vs Narcotic Control
Bureau (2019)
3. Sumit Rai vs State - 2019 SCC Online Del 9364
4. K.Uganchand Kumawat vs. The Inspector of Police,
NIB-CID, Dindugul.
5. Allauddin Khan vs. State of West Bengal 2015 SCC
Online Cal 3033
6. Thomaso Bruno and Another vs. State of U.P -
(2015) 7 Supreme Court Cases 178
7. 2024: CGHC: 21721-DB
8. Chanam Ranjit Meitai vs Union of India - 2009
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SCC Online Gau 442
9. Kunal Dattu Kadu vs Union of India - 2022 SCC
Online Bom 1770
10. Arti Sen vs. State of M.P - 2013 SCC Online MP
11182
11. Krishan Chand Vs. State of Himachal Pradesh -
(2018) 1 SCC 222
12. 2018 SCC Online P&H 7164
13. Avtar Singh and other vs. State of Punjab - (2002)
7 SCC 419
14. Sanjay Kumar Tiwari and another vs State of
Orissa - 2017 SCC Online Ori 838
15. State of Rajasthan v Ram Chandra - (2005) 5 SCC
16. Kalayath Nassar State of Kerala - (1999) 7 SCC
17. Mohammed Khalid & Anr Vs. The State of
Telangana - 2024 INSC 158
18. Yusuf @ Asif Vs. State – 2023 INSC 912
19. Union of India v Mohantal, (2016) 3 SCC 379
20. Boota Singh v State of Haryana, (2021) 19 SCC
21. Smt. T. Ramadevi Vs. The State of Telangana in
W.P. No 21912 of 2024 dated 26.09.2024
22. Ashak Hussain Allah Detha Vs. Assistant Collector
of Customs (P) Bombay, 1950 SCC Online Bom3
23. Iqbal Kaur Kwatra v. District General of Police,
Rajasthan State - 1996 SCC Online AP 206
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24. Extracts from Drug law Enforcement Field
Officers Handbook issued by Narcotics Control Bureau
(Pages 1 to 37)
25. Shafhi Mohd. v. State of H.P, (2018) 5 SCC 311
26. Order dated 22.06 2022 by the Calcutta High
Court in In Re-An application for bail under Section 439 of
the Code of Criminal Procedure in connection with NDPS
Case No. 198 of 2021 arising out of Lalgola P S. Case No.
698 of 2021 dated 17.09.2021 under Sections 21(c)/29 of
the N.D.P.S. Act
27. Balwinder Singh (Binda) v. The Narcotics Control
Bureau - 2023 INSC 852
28. Ramji Singh v State of Haryana, 2007 SCC Online
P&H 213
29. Rajesh Jagdamba Avasthi v. State of Goa, (2005) 9
SCC 773
30. Noor Aga v. State of Punjab, (2008) 16 SCC 417
6. The learned Special Public Prosecutor made the following
submissions:-
6.1. The officer has no motive against the appellants. They received the
secret information about the illegal transportation of huge quantity of
contraband. They properly recorded the information and informed same to
the superior and recovered the contraband in the presence of the independent
witness, P.W.4. Apart from the official witnesses, P.W.4, the independent
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witness clearly deposed about the recovery from the car. The lapse on the part
of the Investigating Agency in not recovering CCTV footages and the
recorded footage is not a material one when the evidence of independent
witness P.W.4 and the official witness are cogent and clear. He further stated
that the hotel name was changed much earlier to the issuance of the said
document. But, Ex.D.4 contains the original name i.e., Anjaneya Hotel and
not in the name of the 'Eden Garden Hotel'. It creates doubt over the evidence
of D.W.3.
6.2. D.W.1/Wife of the first appellant/A1 deposed that her husband
received a phone call at 08.30 p.m on 11.06.2018 and subsequently, he left
the house. Thereafter, when she called him at around 09.00 p.m, his phone
was switched off. Her mother-in-law received a call from somebody that her
husband was involved in the drug trafficking and the same was published in
the local news. Thereafter, they went to NCB office and they did not respond
properly. Thereafter, she came to know that on 13.06.2018 at 05.00 p.m, he
was illegally confined in the prison. In this regard, she made a complaint to
various officers under Ex.D.1 and Ex.D.2 and her evidence is artificial one.
From the contents of the document, it shows that it is a false one. She sent a
complaint about the illegal custody on 11.06.2018. But, according to defence,
the illegal custody of the appellant/A1 was on 13.06.2018. Therefore, the
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delay in giving the complaint about the illegal custody of the appellant/A1
was not properly explained and hence, the claim of D.W.1 is liable to be
rejected.
6.3. The evidence of D.W.2 is that he was working in Hindu Religious
and Endowment Board at Gopinathaswamy Thirukovil, Rettiyarchatram.
Dindigul District. He and his brother/A1 went to the Anjaneya Hotel and
thereafter, they were illegally taken custody by NCB officers is not
believable one. He did not make any complaint to any person relating to the
above illegal detention. The evidence of D.W.3 that he was working as
Cashier of the Anjaneya Hotel is a false one. He did not produce any
evidence to show that he was working in the said Anjaneya Hotel on the date
of occurrence i.e., 11.06.2018. The Employment Certificate was produced by
D.W.3, which was marked as Ex.D.4 itself is doubtful one.
6.4. D.W.3 never deposed about the damage caused to the CCTV
Camera in the Anjaneya Hotel by NCB officers. According to him, the name
of the hotel was changed as 'Eden Garden Hotel' before the issuance of Ex.D.
4. But, the document contained the name of Anjaneya Hotel. Therefore Ex.D.
4 is a false one and it was created only with an intention to safeguard the
appellant/A1. Therefore, he seeks to reject the evidence of the defence.
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6.5. The appellant/A1 was working as Assistant Public Relations
Officer in Dindigul Collectorate, Dindigul. He was absent during 5 days i.e.,
from 08.06.2018 to 12.06.2018. He has not produced any document to prove
their absence is bona fide. But, his presence in the Andhra Pradesh is
established through CDR report and he also operated his account in Andhra
Pradesh. Therefore, the prosecution clearly proved the presence of the
appellants in the State of Andhra Pradesh and his absence at his office during
that time and the material conversation between the accused, all cumulatively
proved the charge under Sections 25 and 29 of the Act. The evidence of P.W.
1, P.W.3 and P.W.4 clearly proved the presence of the appellants in the car
and the said car was seized with contraband. The weight of the contraband is
251.500 kg. The same was clearly established through the evidence of P.W.1
to P.W.4 and the corresponding contemporaneous documents and all the
documents were produced before the learned Judicial Magistrate at the time
of remand itself.
6.6. At the time of remand, none of the accused stated before the
learned Judicial Magistrate about the illegal custody or the assault made by
the officers. In the above circumstances, the prosecution clearly proved the
case.
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6.7. The evidence of P.W.1 clearly proved the compliance under
Section 42 of the Act and in the document under Ex.P.2 it is clearly stated
about the compliance.
6.7.1. Compliance under Section 50 of the Act is not applicable to this
case for the reason that the recovery was made from the car. There was huge
quantity of contraband and the same was also produced before the court and
go-down receipt was produced and a report under Section 57 of the Act also
was properly submitted to the Higher Officials. Therefore, the prosecution
clearly proved the case of the huge quantity of 251.500 kg of ganja.
6.7.2. There was recovery of huge quantity of ganja in 114 parcels. The
officer converted 114 parcels into 19 parcels and put the same in 6 gunny
bags and obtained 2 samples ( each sample 25 gram ) from each gunny bag
and the weight of six gunny bags were 41.650 kg, 42.050 kg, 41.850 kg,
42.150 kg, 41.850 kg and 41.950 kg and the total weight of contraband was
251.500 kg. They followed the 'homogenic method' in taking samples and all
the samples were properly sealed and the remaining contraband was also
properly sealed and produced before the Court. Therefore, they had properly
taken the samples and properly sealed the remaining contraband as per the
procedure stated in the notification.
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6.8. The acquittal under Sections 27A and 28 of NDPS Act is not a
ground to disbelieve the available evidence to convict the appellants under
Section 8(c) r/w 20(b)(ii)(c), 25 and 29 of NDPS Act. Therefore, in all
aspects, the prosecution clearly proved the case and hence, he seeks to
confirm the conviction and sentence passed by the learned trial Judge.
7. This Court considered the rival submissions made by the learned
counsel appearing for the appellants and the learned Additional Public
Prosecutor appearing for the respondent and perused the materials available
on record and the precedents relied upon by them.
8. 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?
9. Discussion on the compliance of Section 42 of the Act:-
9.1. P.W.2 received the secret information on 11.06.2018 at 05.00 p.m
and he recorded it and thereafter, informed to his immediate superior P.W.3.
To prove the same, Ex.P.1 was marked and it is clearly stated that the
information was also reduced in writing at 05.30 p.m and P.W.3, the
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immediate superior also acknowledged the same. P.W.3 also deposed that he
received the information and accorded permission to P.W.1 to conduct search
at 06.00 pm. P.W.3 clearly deposed that he received the official information.
Considering the above evidence of P.W.1 and P.W.3 along with Ex.P.1, this
Court has no hesitation to hold that there was compliance of section 42 of the
NDPS Act. 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 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
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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
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
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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 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.
9.2. From the above precedent of the Hon'ble Supreme Court, it is clear
that once the officer received the secret information and proceed to make
search, recovery and arrest the accused along with contraband, it is the duty
of the officer to comply the requirement of Section 42 of the Act.
9.3. In this case, P.W.1 and P.W.3 have clearly deposed about the
compliance of section 42 of the Act and their evidence are cogent and they
were subjected to incisive cross examination, but nothing was elicited to
disbelieve their evidence about the compliance of section 42 of the NDPS
Act. Therefore, this court is unable to accept the argument of the learned
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counsel for the appellant that there was no compliance of section 42 of the
Act. The considered opinion of this Court is that there was strict compliance
of section 42 of the Act.
9.4. For better appreciation, it is relevant to extract the following
evidence of P.W.1 and P.W.3 and also Ex.P.1:-
9.4.1. Evidence of P.W.1:-
mth; $wpaij ehd; clNd fzpzpapy; gjpT nra;J efy;
vLj;J gbj;Jfhz;gpj;Njd;. mij cWjp nra;jgpd; vd;
Nky;mjpfhhpahd fz;fhzpg;ghsh; jpU.RNu];Fkhh;> mthplk; jftiy
vOj;J%ykhf rkh;g;gpj;Njd;.
9.4.2. Evidence of P.W.3:-
fle;j 11.6.2018 md;W ehd; mNj mYtyfj;jpy;
fz;fhzpg;ghsuhf gzpapy; ,Ue;j rkaj;jpy; vdf;F fPo; gzpGhpAk;
Ez;zwpT mjpfhhp rutzd; mth;fs; xU jftiy Rkhh; khiy 5.30
kzpastpy; gjpT nra;J vd;dplj;jpy; nfhLj;jhh;. me;j jftypy;
11.6.18 md;W ,uT Rkhh; 10.30 kzpastpy; mUz;> utp kw;Wk; =uhk;
Mfpa %tUk; tj;jyFz;L mUNf yl;RkpGuk; Nlhy;Nfl; mUfpy;
itj;J mth;fSila ehd;F rf;fu thfdk; vz;.b.vz;.72 vN[ 9000
vd;w thfdj;jpy; mjpf msT fQ;rh vd;Dk; Nghij nghUis
nfhz;Lte;J tpw;gid nra;a ,Ug;gjhfTk; me;j jftypy;
njhptpj;jpUe;jhh;. me;j jftiy gphpT 42d; fPo; vd;dplk; rkh;g;gpj;ij
ehd; ngw;Wf; nfhz;L chpa eltbf;if vLf;Fk;gb cj;juT
gpwg;gpj;Njd;.
Ex.P.1 is as follows :-
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9.5. From the above, it is clear that there was compliance of
section 42 of the Act.
10. Proof of recovery :-
10.1. After the receipt of information, about the illegal possession and
trafficking of the huge quantity of ganja on the Kodaikanal, Batlagundu
Road, near Anjaneya Hotel, P.W.1 to P.W.3 officers assembled in the said
place and made surveillance along with the independent witness P.W.4. It is
not the case of D.W.2 and D.W.3 that P.W.4 was not working in Anjaneya
Hotel, when the independent witness P.W.4, P.W.1 to P.W.3 clearly deposed
about the arrival of 3 accused in the car and the officials nabbed 3 accused
with huge quantity of ganja and the samples were taken in 'homogenic
method' and also samples were intact and the remaining contraband was
produced before the learned Judicial Magistrate at the time of remand itself,
this Court has not hesitation to hold that the recovery was clearly proved in
this case. Once, recovery was proved, the presumption under Sections 54
and 35 of the Act comes into force. As per Sections 54 and 35 of the Act, if
huge quantity of contraband was found in possession of accused in the car in
which they had travelled, the burden is upon the accused to disprove the
same. In this case, A1 took a stand that he was not available in the car and
A2 & A3 stated that A1 asked them to come to the car at the Anjaneya Hotel.
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A1 and A3 also stated that the officer came to their house at 08.00 p.m on
11.06.2018 and took them to the Anjaneya Hotel. The consistent plea of all
the accused is that they were illegally taken from their own house. But, none
of the house members of the appellants made a complaint against any of the
officers. Therefore, they projected a false story to escape from the legitimate
punishment for the possession of huge quantity of ganja. Hence, the
prosecution clearly proved the case beyond reasonable doubt.
11. Discussion on the material evidence:-
11.1. The evidence of P.W.1 to P.W.4 is that the vehicle was found with
possession of huge quantity of contraband. Even though, they were subjected
to incisive cross-examination, nothing was elicited to disprove the evidence
relating to the recovery. Their evidence clearly proved the presence of the
accused in the car along with the contraband. Their mobile phones were
seized by NCB department and CDR report also obtained with necessary
certificate and the same was marked under Ex.P.85. The said documents
clearly proved that there was communication between the cell phones used
by each accused. That apart, there was cash transaction from the account of
A1 to the account of A2 in Andhra Pradesh and the same was proved by
marking of the said documents i.e.,, the transfer of amount from the account
of A1 to the account of A2. A1 was absent in his duty and he being the
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government servant in the position of Public Relations Officer, his attendance
was marked. His unauthorised absence during the material point of time and
all the facts clearly show about the involvement of the accused in illegal
transportation of contraband from Andhra Pradesh to Batlagundu and it is
clearly proved and hence, the prosecution clearly proved the case of
prosecution of trafficking of the huge quantity of ganja in accordance with
law.
12. Discussion on compliance of section 50 of the NDPS Act:-
Firstly, Section 50 of the Act is not applicable to the present case on
the ground that the recovery was made from the dicky of the car. The Hon'ble
Supreme Court its judgment has held that if the recovery was made from the
car, application of section 50 of the Act will not arise. Therefore, the
contention of the learned counsel for the appellants that Section 50 of the
Act is not complied with is not accepted.
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 251.500 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.23. The entire contraband was also marked
as MO.1 to MO.6 at the time of the trial. All the marked contraband were
properly sealed and intact. In the above circumstances, the non-compliance
of Section 52A of the Act, is not material. The Hon'ble Supreme Court in the
cases of Union of India v. Mohanlal reported in 2012 7 SCC 712 at page
715 stated that in the case of the huge quantity of ganja, even non-production
of the entire contraband before the court is not a material against the
prosecution case. So far as compliance of 52A of the Act is concerned, when
the entire contraband was produced before the court at the time of the trial,
non-compliance of Section 52A of the Act is not a ground to acquit the
accused when the recovery was proved through legal evidence. 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
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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
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.”
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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:-
“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. This Court also declined to accept the similar contention of the
learned counsel for the appellants in Crl.A(MD)No.492 of 2022 that the
accused are entitled to get acquittal on the ground of non-compliance of 52A
of the Act by making elaborate discussion.
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13.4. In view of the above circumstances, this court is unable to accept
the argument of the learned counsel for the appellants that non-compliance of
Section 52A of the Act creates a doubt over the prosecution case and
therefore, the same deserves to be rejected.
14. Lapse on the part of the Investigating Agency:-
14.1. The learned counsel for appellants would submit that the
Investigating Agency failed to recover CCTV camera available near the
occurrence place, namely, the Anjaneya Hotel. The learned counsel also
would submit that D.W.2 was examined on the side of defence to show that
the availability of CCTV camera and the same was destroyed by the officers
of Department and hence, non-recovery of CCTV camera is fatal to the
prosecution.
14.2. This court is unable to accept this explanation, and the delay on
the part of the Investigating Agency in recovering CCTV camera is not a
lapse and it is not a ground to acquit the accused when the evidence of P.W.1
to P.W.3 and the independent witness is cogent. P.W.4 clearly deposed about
the recovery of the contraband. This fact is proved as per Section 3 of the
Evidence Act which states that the fact can be proved through the oral
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evidence or electronic evidence or through the documents. In this case, the
factum of recovery of huge quantity of ganja from the car was proved
through the evidence of P.W.1 to P.W.3. In the said circumstances, mere lapse
on the part of Investigating Agency in recovering CCTV camera is not a
ground to acquit the accused.
15. Discussion on the defence plea and defence witness:-
15.1. Appellants gave the following explanation during questioning
under Section 313 Cr.P.C.,:-
Arun/A1:
Iah> ,e;j tof;fpy; 13.06.2018 Kjy; kJIu kj;jpa
rpiwapy; ,Ue;J tUfpNwd;. Iah 11.6.2018 khiy ehd;
tPl;by; ,Ue;j NghJ ,uT 8.45 kzp mstpy; xU Nghd; miog;G
te;jJ> te;j miog;G muR Ntiyf;fhf vd;Dld; Ngr Ntz;Lk;>
vdNt tj;jyf;Fz;L mTl;lhpy; cs;s MQ;rNeah Xl;lYf;F
tUkhW $wpdhh;fs;. ngah; md;G. ehDk; vd; jk;gp tUZk;
vq;fsJ Ftpl; Fhh; TN 57 BX 3609 njhiyNgrpapy;
njhptpj;j ,lj;jpw;F nrd;Nwhk;.
mq;F kJiu vd;rpgp mjpfhhpfs; vd;idAk; tUizAk;
mbj;J Xl;ly; gpd;Gwk; itj;J gpd;G Rkhh; ,uT 10.00 kzpf;F
vd;idAk; tUizAk; kJiu vd;rpgp mYtyfj;jpw;F $l;b
nrd;wdh;. gpd;dh; tUiz tpLtpj;Jtpl;ldh;. vd; kPJ ngha;
tof;F Nghl;Ltpl;ldh;. =uhk; vd;dplk; muR Ntiy Nfl;L
tUk;NghJ gof;fk;. mth; EEE gbj;jth;. mtUf;F cjtl;Lk;
vd vd;Dila fhh; Reg.No.TN-72-AJ-9000 nfhLj;Njd;. jdpahf 2017
Kjy; Xl;btUfpwhh;.
rptRg;gpukzpaplk; gzk; thq;fpaJ vd;Dila Nkhl;lhh;
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irf;fps; thq;f kl;Lk;jhd; GNuhNehl; kl;Lk; nfhLj;Njd;.
vd;id hpkhz;l; nra;Ak; NghJjhd; fQ;rh tof;F vd
njhpe;J nfhz;Nld;. ,e;j tof;F Mtzq;fspYk; nghUl;fspYk;
vd;id Jd;GWj;jp kpul;b vd;rpgp mYtyfj;jpy; itj;J
ifnaOj;J ngw;whh;fs;.
Ravi/A2:-
Iah vdf;F nry;Nghd; fpilahJ. vd;id 11.6.2018 khiy
vd;rpgp mjpfhhpfs; te;jyFz;Ltpy; cs;s vdJ tPl;bw;F te;J
khiy 8.00 kzpf;F tprhuizf;F jpz;Lf;fy; Nuhl;by; cs;s
MQ;rNeah Xl;lYf;F mioj;J te;jhh;fs;.
kJiuf;F mioj;J te;J vd; kPJ ngha; tof;F
Nghl;lhh;fs;. NkYk; vd;id kpul;b vdf;F vjpuhf ifnahg;gk;
ngw;W r%fk; ePjpkd;wj;jpy; jhf;fy; nra;ag;gl;l Mtzq;fs;
nghUl;fs; vdf;F vjpuhf gad;gLj;j $lhJ vd r%fk; mth;fis
gpuhh;j;jpf;fpNwd;.
SriramA3:-
vd;id 11.06.2018k; Njjp kJiu NCB mjpfhhpfs; vd;id
tj;jyf;Fz;L mTl;lhpy; nrk;gl;b Nuhl;by; cs;s MQ;rNeah
Xl;lYf;F tUkhW mioj;jdh;. mjd; Nghpy; ehd; vdf;F
nrhe;jkhd ];Nfhlh fhh;; vz;.TN-72-AJ-9000 nrd;Nwd;. fhiu
MQ;rNeah Xl;lypy; epWj;jp nrd;wNghJ vd;id mth;fs; kJiu
NCB mYtyfj;jpw;F ,uT 9.30 kzpf;F mioj;J nrd;wdh;.
vd;id vdJ mYtyj;jpy; itj;J vd;id kpul;b vdf;F
vjpuhf vd;dplNk ifnahg;gk; ngw;W r%fk; ePjpkd;wj;jpy;
jhf;fy; nra;ag;gl;l Mtzq;fSk;> nghUl;fSk; vdf;F vjpuhf
gad;gLj;j $lhJ vd r%fk; mth;fsplk; gpuhh;j;jpf;fpNwd;.
15.2. According to the prosecution, the appellants travelled in a private
car bearing Reg.NoTN-72-AJ-9000. In the car, all the persons were the
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occupants. The huge quantity of ganja was recovered from the said car. Now,
the case of the appellants is that A1, A3 and D.W.2 called by the NCB
officers to the Hotel Anjaneya and false case was registered. The defence
witnesses were examined on the side of the appellants to prove that they were
not available at the scene of occurrence. D.W.1 is the wife of A1 namely,
Shri.Vaitheeswari. D.W.2 is the brother of A1 namely, Thiru. A.D.Varun.
D.W.3 is the worker of the Anjaneya Hotel. According to D.W.2, he deposed
that he and A1 was called by the officers at 08.15 p.m on 11.06.2018 and
both went to the occurrence place namely, the Anjaneya Hotel at 11.15 p.m
on the same day. Thereafter, NCB officers took both of them to NCB office
and assaulted them and subsequently, the officers allowed D.W.2 to go to
home and remanded A1. The said evidence of D.W.2 is utter false. He was
working in HR & CE as officer. If the version of the person is true, the
minimum requirement on his part is to make a complaint either to his higher
officer of the department or at the local police station. According to his
version, he was in illegal custody for more than 2 days. In these
circumstances, either D.W.2 or D.W.1 never made any complaint against the
officer for the illegal custody of A1. Therefore, the evidence of D.W.2 is
unbelievable one. The officer has no motive against either D.W.2 or A1 and
the other accused. Therefore, the version that the officer illegally took D.W.2
and A1 is stage managed one and the same cannot be accepted.
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15.3. D.W.1, who is the wife of A1 also deposed that at 8.30 pm, both
her husband and D.W.2 went to the scene of the occurrence upon receiving a
call from the police department. Thereafter, at 12.30 pm, when she was tried
to contact him, both cell phones were switched off. The local police came to
her house and enquired about her husband and told her to go to the NCB
office and her husband would be taken to the Court. Hence, she made the
complaint to the Chief Minister's cell under Ex.D.1 i.e. on 20.06.2018 after
the remand of the accused. So, the evidence of D.W.1 is also not believable.
After the arrest, they created a record to escape from the legitimate
prosecution.
15.4. D.W.3 was examined on the side of defence to show that there
was CCTV camera available in the Anjaneya Hotel and there was a footage
that A1 and D.W.2 came in a red colour car and the officers nabbed them.
According to D.W.3, on the date of occurrence, he was working as cashier in
the Anjaneya Hotel. To prove his Employment Certificate was marked as
Ex.D.4. The Employment Certificate stated that he is the employee of 'Eden
Garden'. This Court perused the document and it contains the name of 'Jai
Anjaneya Restaurant'. But, there is no evidence relating to the date of
issuance of said certificate. Subsequent to the occurrence, the 'Jai Anjaneya
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Restaurant' was renamed as 'Eden Garden Restaurant'. There is no evidence
to show that he was the employee of the Anjaneya Hotel. If it is the case of
P.W.4 that he was working in the Anjaneya Hotel and the officer seized
CCTV camera and destroyed it, it is the duty of the manager of the said hotel
to make a complaint against the concerned officer. Therefore, this Court is
unable to accept that P.W.4 was a planted witness to prove the concocted
story of the presence of A1 and D.W.2 in the Anjaneya Hotel. D.W.3 was the
cashier of the Anjaneya Hotel. P.W.4 deposed that he was working as the
manager in the said hotel at the time of occurrence. In the cross examination
of P.W.4, nothing was elicited about the employment of D.W.3 in the hotel.
There was no question relating to the employment of D.W.3 in the said hotel.
He specifically denied the suggestion that the officer insisted him to destroy
the evidence of CCTV camera. In view of that, this Court finds no reason to
believe the evidence of D.W.3.
15.5. The accused namely, the appellants after the arrest for the
possession of huge quantity of contraband, set up a false case that D.W.2 and
A1 was illegally taken to the Anjaneya Hotel. A1 is a gazetted officer namely,
Public Relations Officer, Collectorate, Dindigul. For his involvement of the
offence, he was arrested. If it is the case of D.W.2 that he and A1 were called
by the NCB officers, it is the duty of the officer to report the same within
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reasonable time. But, there were no such steps. At the time of arrest and
remand, there was no reference about this fact. A1 never disclosed the fact of
illegal custody, unlawful beating at the Anjaneya Hotel and no injury is
shown in the medical memo.
15.6. In view of that, the case of the defence is false and even in the
statement of A1 recorded under Section 313 Cr.P.C., it was stated that he was
called by the officers.
15.7. From the above, it is clear that A1 was present in the scene of
occurrence. Both A1 and D.W.2 are the government servants. There was no
explanation on what basis they went to the scene of occurrence without even
verifying call from the officers. Both A1 and D.W.2 never made any
complaint about the illegal custody. Hence, this Court is unable to accept the
evidence of defence and the defence case that false case was registered
against the appellants by implanting a huge quantity of ganja.
16. The learned counsel for the appellants submitted that after acquittal
from the offences under Sections 27A and 28 of the Act, conviction under
Sections 8(c) r/w 20(b)(ii)(C) of NDPS Act r/w 34 IPC, Sections 25 and 29 of
the Act is not maintainable.
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17. As per the NDPS Act, each Section is an independent offence.
There is no bar to convict the appellants Sections 8(c) r/w 20(b)(ii)(C) of
NDPS Act r/w 34 IPC, Sections 25 and 29 of the Act after acquitting the
appellants from the offence 27A and 28 of the Act.
17.1. For better appreciation of the facts and law, this Court extract the
language of Section 25 of the NDPS Act:
“Section 25. Punishment for allowing premises etc.,
to be used for commission of an offence :-
“Whoever, being the owner or occupier or having the
control or use of any house, room, enclosure, space, place,
animal or conveyance, knowingly permits it to be used for
the commission by any other person of an offence
punishable under any provision of this Act, shall be
punishable with the punishment provided for that offence.”
17.2. The prosecution in order to sustain the conviction under section
25 of the NDPS Act “can prove any” of the following facts:
17.2.1. The accused is owner of the property
17.2.2. Either the vehicle or the place is in the occupation of the
accused.
17.2.3. The accused is having control over the vehicle or place.
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17.3. From the above, it is clear that to convict the appellants under
Section 25 of the Act, it is enough to prove the possession, custody and
control over the vehicle with conscious possession of the contraband. Once
the conscious possession was established by the prosecution, the presumption
under Sections 54 and 35 of the Act comes into operation. “Having control
over” demands lesser proof than the proof of ownership. The Hon’ble
Supreme Court has reiterated the principle that while interpreting the
provision of the NDPS Act, principle of purposing interpretation has to be
applied. Any interpretation which leads to the unworkable situation has to be
rejected. The same is being applied in order to control the drug menace which
affected the whole society.
17.4. This Court perused the entire records. “Having control over” the
vehicle was clearly proved through the prosecution evidence of P.W.1 to
P.W.4. The evidence of P.W.1 to P.W.4 clearly deposed about the appellants'
possession, custody and control over the vehicle with conscious possession
of the contraband. Therefore, this court rejects the argument of the Learned
counsel for the appellant that the ingredients of the 25 are not established to
convict the appellant under section 25 of the NDPS Act.
18. So far as Section 29 of the Act is concerned, the unusual company
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of all the accused in the car and the phone transaction at the material point of
time and the transfer of amount from A1's account to A2's account have all
clearly proved that they conspired together in trafficking the huge quantity of
ganja from the State of Andhra Pradesh . Therefore, conviction under Section
29 of the Act is clearly proved in accordance with law. In all aspects, the
prosecution clearly proved the case.
19. Accordingly, the Criminal Appeals are dismissed and the judgment
passed by the I Additional Special Court for NDPS Act Cases, Madurai, in
C.C.No.20 of 2019 dated 25.01.2022, is hereby confirmed.
15.05.2025.
NCC :Yes/No
Index :Yes/No
Internet :Yes/No
dss
To:
1.The I Additional Special Court for 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.
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4.The Section Officer,
Criminal Section(Records),
Madurai Bench of Madras High Court, Madurai.
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K.K.RAMAKRISHNAN, J.
dss
Crl.A.(MD).Nos.126 of 2022 and 880 of 2023
15.05.2025
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