Madras High Court
Harikumar vs State Through 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.961 & 1036 of 2023
Harikumar ... Appellant/Accused No.1
(in Crl.A.(MD).No.961 of 2023)
Eswara Rao ... Appellant/Accused No.2
(in Crl.A.(MD).No.1036 of 2023)
Vs.
State through,
The Inspector of Police,
Karimedu Police Station,
Madurai District.
(In Crime No.1265 of 2021)
... Respondent/Complainant
(In both appeals)
COMMON PRAYER: Criminal Appeals have been filed under Section
374 (2) of Criminal Procedure Code, to call for the records in C.C.No.647
of 2021 dated 27.09.2023 on the file of the I Additional Special Court for
NDPS Act Cases, Madurai, and set aside the same.
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For appellant : Mr.N.Manimaran
(in Crl.A.(MD).No.961 of 2023)
: Mr.M.Jegadeesh Pandian
(in Crl.A.(MD).No.1036 of 2023)
For respondent : Mr.R.Meenakshi Sundaram
Additional Public Prosecutor
(In both appeals)
COMMOM JUDGMENT
The appellants/A1 & A2 in C.C.No.647 of 2021 on the file of the I
Additional Special Court for NDPS Act Cases, Madurai, have filed these
Criminal Appeals before this Court challenging the conviction and
sentence imposed against them in the impugned judgment dated
27.09.2023.
2. Since these two appeals are arising out of the same occurrence
and filed against the order of conviction made in C.C.No.647 of 2021 on
the file of the I Additional Special Court for NDPS Act Cases, Madurai,
these two appeals are taken up together for hearing and disposed of by
way of this common judgment.
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3.According to the prosecution, on 01.11.2021 at 10.15 a.m near
Karimedu Fish Market, New Jail Road, Madurai, the accused were found
in possession of 35 kg of ganja in three bags and trafficking the same in a
Maruthi Suzuki Alto-800 car bearing Reg.No.TN-AP-31-DB-1400
belonging to A2. Therefore, the respondent police filed final report
against them. The trial Court convicted the appellants by the impugned
judgment with the following conviction and sentence:-
Appellants Conviction for the Offence Sentence of Imprisonment
Rank under Section
A1 & A2 8(c) r/w 20(b)(ii)(B) of the 10 year R.I each and to
NDPS Act pay a fine of Rs.1,00,000/-
(Rupees One Laks Only)
each in default to undergo
12 months S.I
4. Case of the prosecution in brief: -
4.1. On 01.11.2021 at 09.00 p.m, when P.W.2 was working as
Sub-Inspector of Police, Karimedu Police Station, Madurai, received the
secret information about the illegal possession and trafficking of the huge
quantity of Ganja by the appellants. He recorded the said information in
the General Diary and reduced the same in writing under Ex.P.9 and sent
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it to his immediate superior/P.W.3 and obtained permission. Thereafter,
P.W.2 proceeded to the occurrence place along with constable and other
police men namely, Karimedu Fish Market, near New Jail Road, Madurai
and mounded surveillance. At that time, the informant identified the
Maruthi Suzuki Alto-800 car bearing Reg.No.TN-AP-31-DB-1400.
Thereafter, P.W.2 intercepted the car. On seeing the police party, the
appellants tried to escape from the place of the occurrence. However,
P.W.2 and the police officers were able to nab them. P.W.2 introduced
himself as police officer and he 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.2 conducted search and found two
bags (each containing 10 kg of ganja) under the back side seat of the car
and found one bag (containing 15 kg of ganja) in the dicky of the car and
totally there was 35 kg of ganja in the said bags and made weightment of
entire contraband and took the samples S1 and S2 ( each 50 gram) from
the said bags and properly sealed the same. He also properly sealed the
remaining contraband. Thereafter, he arrested the appellants. The
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appellants also gave a confessions and the same were recorded by P.W.2.
P.W.2 brought the accused to the police station along with the entire
contraband and sample and registered a case in Crime No.1265 of 2021
for the offence under Sections 8(c) r/w 20(b)(ii)(C), 25 and 29(1) of NDPS
Act and prepared a detailed report under Section 57 of NDPS Act.
Following the same, P.W.2 handed over the custody of the accused to
P.W.3 along with the contraband, sample and report under Section 57 of
the Act. P.W.3 produced the accused before the learned Judicial
Magistrate along with the recovered contraband and samples taken from
the said contraband and requested to remand them. After completing all
the formalities, the learned Judicial Magistrate remanded the appellant in
judicial custody. Thereafter, P.W.3 conducted the investigation and filed
the final report before the I Additional Special Court for NDPS Act Cases,
Madurai, and the same was taken on file in C.C.No.278 of 2021.
4.2. After appearance of the accused, copies of records were
furnished to them under Section 207 Cr.P.C. The learned Trial Judge, on
perusal of records and on hearing both sides and being satisfied that
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there existed a prima facie case against the appellants, framed the
necessary charges and the same was read over and explained to them and
on being questioned, the appellants denied the charges and pleaded not
guilty and stood for trial.
4.3. The prosecution, in order to prove its case, had examined 3
witnesses as P.W.1 to P.W.3 and exhibited 17 documents as Ex.P.1 to
Ex.P.17 and marked 9 material objects as M.O.1 to M.O.9.
4.4. When the accused were examined under Section 313(1) (b) of
Cr.P.C., with regard to incriminating aspects against them, they denied
the evidence as false and further stated that a false case was foisted
against them. The accused neither produced any documents nor
examined any witness on his side.
4.5. The learned Trial Judge, considering the materials and
circumstances found that accused in C.C.No.278 of 2021 were guilty and
passed the conviction and sentence against the appellants as stated above.
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5. Challenging the same, these appeals have been filed.
6. Thiru.N.Manimaran, learned counsel for the appellant in
Crl.A(MD)No.961 of 2023 and Thiru.M.Jegadeesh Pandian, learned
counsel for the appellant in Crl.A(MD)No.1036 of 2023 have jointly made
the following submissions:-
6.1.According to the prosecution, P.W.2 received a secret
information and sent the same to his Immediate superior and thereafter,
he proceeded to the spot and made a search and recovered the
contraband. According to P.W.2, he received the secret information and
made entry in the General Diary and the same was not produced and
only Ex.P.9 was produced with delay. Therefore, there was doubt over
the compliance of Section 42 of the Act. There were discrepancies
between the testimony of P.W.1 and P.W.2 about the receipt of the
information. Therefore, there was non-compliance of the mandatory
procedure stated in the Section 42 of the Act.
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6.2. According to P.W.2, crime number was mentioned in the
samples S1 and S2 and the remaining contraband before registration of
FIR and it creates doubt over the recovery.
6.3. All the documents are typed one and there was no explanation
where they were typed.
6.4. A1 hails from the State of Kerala and he does not know Tamil
language. He knows only Malayalam language. Hence, the entire
recovery procedure without translator is not admissible.
6.5. There were 9 days delay in sending sample to the lab. In view of
the above circumstances, they seek for acquittal.
6.6. The learned counsel for the appellants made a request before
this Court that since the appellants are unable to pay the fine amount, this
Court may reduce the default sentence.
6.7. When the final report was filed under Sections 8(c) r/w 20(b)(ii)
(C), 25 and 29(1) of NDPS, charge was framed only for the offence under
Section 8(c) r/w 20(b)(ii)(C) of NDPS. Even though no conviction was
passed under Sections 25 and 29 of the Act, discussion has been made
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about Sections 25 and 29 of the Act, which shows non application of
mind on the part of the learned trial Judge.
7. The learned Additional Public Prosecutor made the following
submissions:-
7.1. Presence of crime number in the samples and the remaining
contraband has already been adressed by this Court in number of cases.
It is being mentioned on the said MOs, only to show that the property
belonged to the particular crime number. It is not the case of the
appellants that the same was forged.
7.2. Apart from that, the delay is not material when the seal was
intact and there was no question during cross-examinaion that the
presence of the crime number has caused prejudice to the appellants.
7.3. When the recovery was clearly proved through the cogent and
trustworty evidence of P.W.1 and P.W.2, the case of the appellants that
there was delay in sending the sample cannot be accepted.
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7.4. Even though the appellants have no knowledge of writing
tamil language, they have working knowledge to understand the same.
Hence, they conducted the trial through their Advocates and also they
can understand the language of Tamil and hence, no projudice was
caused to the appellants. There is a specific answer given by P.W.2 that
they know Tamil language and hence, there is no necessity for translation
through translator in their mother tongue.
7.5. Sofar as taking of print out is concerned, it is not material
when the evidence of P.W.1 and P.W.2 is cogent and trustworthy relating
to the recovery.
7.6. All the documents and recovered contraband were produced at
the time of remand itself without any delay. In all aspects, the
prosecution clearly proved the case through the evidence and
contemporaneous documents. Therefore, he prayed for dismissal of the
appeals.
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8. 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.
9. The question that arises for consideration in this case is whether
the prosecution has established the case beyond reasonable doubt against the
appellants and the learned trial Judge's conviction and sentence imposed against
the appellants can be sustained or not?
10. Discussion on non-compliance of Section 42 of the Act :-
10.1. The learned counsel for the appellants would submit that the
prosecution case itself is that the searching officer received the secret
information and he made the search, recovery and arrest. The learned
trial Judge is not correct in convicting the appellants without considering
his specific plea that the non-compliance of the mandatory procedure
under Section 42 of the Act would affect the case of the prosecution as per
the principle laid down by the Hon’ble Constitution Bench of Supreme
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Court in Karnail Singh Vs, State of Haryana reported in (2009) 3 SCC
(Crl.) 887. The learned Additional Public Prosecutor countered the same
by placing reliance on the evidence of P.W.1 and P.W.2 and Ex.P.9.
10.2. Section 41(1) of the NDPS Act empowered the jurisdictional
learned Judicial Magistrate to issue warrant for arrest of person or for the
search of any building, conveyance or place to the officers, who come
under the purview of the NDPS Act, who have reason to believe any
narcotic drugs or psychotropic substance or controlled substance is
illegally acquired or concealed.
10.3. 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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10.4. Section 42 of the Act following Section 41 of the Act mandates
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.
10.5. As per the Section 42 of the Act, if the empowered officer has
received the secret information about the illegal possession,
transportation of narcotic drugs or psychotropic substance or controlled
substance, 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:-
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“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
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
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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
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
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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.
10.6. 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.
10.7. In this case, P.W.1 received the secret information on
01.11.2021 at 09.00 p.m and he recorded the same in General Diary and
reduced it in writing under Ex.P.9 and informed P.W3. P.W.3
acknowledged the same and deposed that he received the information
and asked to proceed for search. The said evidence is cogent and
trustworthy and the content of Ex.P.9 is as follows:-
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10.8. P.W.2 received the secret information and duly informed the
same to P.W.3. P.W.3 acknowledged the same and Ex.P.9 was prepared in
accordance with law and it contains the receipt of information by
P.W.3 and hence, the contention of the learned counsel for the appellants
that there was no compliance under Section 42 of the Act is not accepted.
11. Discussion on delay in sending sample:-
11.1. According to the appellants, there was 9 days delay in sending
sample to the lab. The contraband was recovered on 01.11.2021. The
sample was taken on 01.11.2021 and the same was produced before the
learned Judicial Magistrate on 02.11.2021. The sample was sent to the lab
on 10.11.2021. In the sample report, it is specifically stated that seal was
intact. Therefore, the argument of the learned counsel for the appellants
to disbelieve the recovery on account of the delay in producing the
contraband before the FSL lab cannot be accepted and the same is
fortified by following paragraph of the judgment of the Hon'ble Supreme
Court:-
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11.2. Hardip Singh Vs. State of Punjab reported in (2008) SCC 557:-
“it was of No consequence, for the fact of the recovery of the said
sample from the possession of the appellant had been proved and
established by cogent and reliable evidence and that apart, it had also
come in evidence that till the date of parcels samples, were received by
the chemical examiner, the seal put on that parcel was intact....... The
plea that there was 40 days delay was immaterial and would not dent
of prosecution case.”
11.3. State of Rajasthan Vs. Sahiram reported in 2019 10 SCC 649
“If the seizure is otherwise proved, what is required to be
proved is the fact that the samples taken from and out of the
contraband material were kept intact, that the report of the
forensic experts shows the potency nature and quality of the
contraband material and that based on such material the essential
ingredients constituting an offence are made out.”
12. Mentioning of the crime number in recovery mahazar, arrest
memo and label of the sample :-
12.1. The learned counsel for the appellants would submit that the
mentioning of the crime number in the recovery mahazar, arrest memo
and label of the sample creates suspicion about the recovery of the
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contraband in the occurrence place and they produced the judgment of
this court in Thangapandi and others Vs. The Inspector of Police (L&O)
reported in AIR OnLine 2018 MAD 1132.
12.2. The learned Additional Public Prosecutor would submit that
the most of the recovery was made on the basis of the receipt of the secret
information. Therefore, the searching officer had knowledge about the
last crime number of the particular police station. Further, on the label it
is necessary to mention the crime number so as to make the proper
identification of the said materials that they belonged to the said case.
Therefore, the criminal rules of practice demands the mentioning of the
crime number on the label of the material object. Hence, mentioning of
the crime number can not be treated as a circumstance to treat the
recovery with suspicions eye. He also relied the judgment of the same
learned judge in the different cases with finding that mentioning of the
crime number need not necessarily affect the testimony of the recovery
witness.
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12.3. This court considered the said submission of the both learned
counsel for the appellants and learned Additional Public Prosecutor and
also the relevant precedent on the said aspect.
12.4. As per the criminal rules of practice framed by the Hon’ble
High Court, Madras, it is duty of the Investigating Agency to affix the
crime number on the material object in order to keep safe custody of the
property in the property room of the trial court and also for proper
identification of the material object that it belonged to the corresponding
crime number. The labelling of the crime number on the material object
might have been written subsequently at the time of the remand of the
accused. Further, in most of the cases, the search was made on the basis
of prior information received as per section 42 of the NDPS Act. Since, the
team had proceeded to the spot on the basis of recording of the
information either in the CD file or sending information through
telephone to the higher officers or after reducing the said information in
writing, they would have the chance of noting the last crime number of
the particular station. Even in the case of the recovery under section 43 of
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the NDPS act or chance recovery, due to the advantage of the
telecommunication, the chance of getting the last crime number of the
station is possible one. Therefore, without proper cross examination in
the above aspect and with the supporting material for the manipulation
of the records, the contention of the learned counsel for the appellant that
the presence of crime number created suspicion relating to the recovery
of the contraband in the occurrence place is nothing but myth. Further, it
is true that the learned judge of this court in the judgment in the case of
Thangapandi and others Vs. The Inspector of Police (L&O) reported in
AIR OnLine 2018 MAD 1132. has held that the presence of the crime
number in the arrest memo, recovery mahazar, label of the material object
created doubt considering the other material circumstances of the said
case in the process of the recovery of the contraband. But, the learned
judge in the subsequent decision based on the earlier decision of the
Hon’ble Judge of this court has held that the same cannot be used to
suspect the recovery of the contraband.
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12.5. Therefore, this court is duty bound to consider both appeal
judgment relied by the learned counsel for the appellants and the learned
additional public prosecutor and the other precedents of the various high
court and the Hon’ble Supreme Court.
12.5.1. The similar contention was raised before the Hon'ble
Supreme Court in the case of Radhey Sham v. State of Haryana, reported
in (2001) 10 SCC 206 and the relevant paragraphs are as follows:-
“6. Learned counsel for the appellant further submitted
that FIR number is mentioned on the recovery memo and
therefore it is apparent that FIR was first registered and
thereafter the recovery memo was prepared. He has also
submitted that sealing of the article seized was also not proper.
No independent witness was examined nor was the accused
having any injury even though the van turned turtle. In our
view, the aforesaid submissions deserve no consideration
because with regard to the FIR, FIR number is mentioned on
the recovery memo but that would not vitiate the recording of
FIR.
7. Lastly, learned counsel appearing for the appellant
submitted that in view of the evidence of defence witness the
Court ought to have considered that as there was some
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altercation between Pawan Kumar and SI Baljit Singh, the
accused has been falsely implicated in the crime. In our view,
if there was any altercation or dispute between Pawan Kumar
and SI Baljit Singh, there was no reason for the prosecution to
involve the appellant. If they wanted falsely to involve Pawan
Kumar, who is the owner of the van, they could have done so
easily because from the van owned by him 8 bags containing
320 kg of chura-post (poppy husk) were found. Further, it is to
be stated that the accused in his statement under Section 313
CrPC has stated that he was falsely implicated at the behest of
Head Constable Om Prakash. As against this, witness Pawan
Kumar has stated that there was dispute with Baljit Singh. In
this view of the matter, no credence can be given to the
defence.
8. In the result, we hold that there is no substance in the
appeal. It is, therefore, dismissed.”
12.5.2. The single bench of this Court in Crl.A.No.210 of 2011 has
held as follows:-
“9. Regarding the presence of crime number on the
label, it is not a ground to doubt the recovery. It may only add
suspicion if not properly explained or there is no plausible
reasons inferable through the evidence. Normally, no Court
will accept the property to its custody without proper
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identification and case details. This precaution is in
consonance to the Criminal Rules of Practice so as to avoid
difficulty in tracing the property in the property room.
Therefore, the presence of crime number in the property
cannot be suspected merely because label with crime number
was affixed prior to registering the case. The crime number
might have written subsequently or obtained in advance from
the station immediately after the seizure since, the team had
proceeded to the spot based on specific information and the
Station House Officer been reported about the information as
per Section 42(2) of the NDPS Act, before proceeding to the
spot. That is why in Rangan case, the Court has precisely
extracted what, Vasudevan (PW.2), has deposed and
proceeded further and stated as follows:
"tHf;F brhj;jpy; cs;s tpgu nygps;
rk;gt ,lj;jpy; itj;J jahh; bra;J xl;lgg;l;lJ vd;why;
rhp/ me;j tpgu nygpspy; Fw;w; vz; kw;Wk; vd;ogpv!;
rl;lg;gphpt[fs; Fwpg;gplg;glLs;s
; d vd;why; rhp. epiyak;
te;j gpwF jhd; Kjy; jftywpf;if gjpt[ bra;ag;gl;lJ
vd;why; rhp. tpgu nygpspy; Fww; vz; kw;Wk; vd;ogpv!;
rl;lg;gphpt[fs; Fwpg;gplg;gl;ljhy; fhty; epiyaj;jpw;F te;J
gpd;dp; l;L jahh; bra;ag;gl;lit vd;why; rhpay;y."
Vasudevan [P.W.2] has clearly admitted that the labels
were affixed on the contraband at the place of seizure and he
has also admitted that he has given the crime number on the
labels. He has also admitted that the FIR [Ex.P.8] was
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registered only subsequently and he has not given any
plausible explanation in his evidence, thereby making the very
recovery doubtful, the benefit of which should go to the
accused.
10. To make it more clear, this Court add the plausible
explanation need not necessarily be in the testimony but it can
be also inferred from the other evidences before the Court. In
this case, the accused has affixed her LTI in the recovery
mahazar. She has also affixed her LTI in the property labels.
The properties were sent to the Magistrate under Form 95
(Ex.P.7) on 22.10.2004, the same day of recovery. Therefore
mere presence of crime number on the label affixed prior
to registering F.I.R is ipso facto will not render the
recovery doubtful.”
12.5.3. The similar contention was raised before this Court (Hon'ble
Mr.JUSTICE P.VELMURUGAN) in S.A.Bakrudeen Vs. The Inspector of
Police, NIB CID Chennai in Crl.A.No.395 of 2012 and the relevant
paragraph is as follows:-
“Normally in NDPS cases the seizure officer after getting
permission from the superior officer only he would proceed to
occurrence place, some time he would note down the next crime
number of the police station. Therefore, mere mentioning the
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crime number in the arrest memo, search and recovery mahazar
will not affect the case of the prosecution.”
12.5.4. The similar contention was raised before this Court (The
Hon'ble Dr.Justice G.JEYACHANDRAN) in Sekar @ City Sekar Vs.
Inspector of Police, NIB CID in Criminal Appeal No.425 of 2012 and the
relevant paragraph is as follows:-
9. Regarding mentioning of crime number in the arrest
memo, PW.2 Mr.Annakamu was unable to give satisfactory
explanation. Similarly, when wife of the accused was
informed and from where she was informed through telegram
about the arrest of accused is also not properly explained.
However, this discrepancy in the arrest memo at the most,
they make the arrest illegal but not the seizure. Insofar as
seizure is concerned, the sequence of event has spoken by
prosecution witness is that on 16.02.2006 at about 11.30
hours, PW.2 has received the information and placed the
information to his superior PW.4 Mr.V.Ashok Kumar, at
about 11.45 hours and thereafter, they have proceeded to the
spot. The informant has identified the accused at around
13.30 hours which has followed by seizure proceedings. The
accused and the seized contraband has been produced before
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the Magistrate on the same day of seizure and arrest. For
producing the contraband before the Regular Court, 20 days
delay is admitted. However, on the day of arrest itself, the
contraband has been produced before the Judicial Magistrate.
The sample received by the chemical examiner for analysis
was found intact with seal. Therefore, there is no scope to
suspect any manipulation. When the possession of contraband
not been explained by the accused, the overall evidence let in
by the prosecution, prove the charge of illegal possession of
Ganja by the accused. Therefore, this Court finds no error in
the finding of the trial Court.
12.5.5.This Court in the case of Kannan Vs. State represented by the
Inspector of Police reported in AIR OnLine 2019 MAD 402, has held as
follows:-
“20.Not only in this case, in many other cases also, this
defence is taken by the counsels representing the accused
person. This Court, earlier held in few cases that it is highly
improbable of mentioning the crime number in the sample
whereas, in the contraband or any other document which were
supposed to be prepared prior to registration of F.I.R. Since,
in normal practice, crime number is assigned only at the time
of registering the F.I.R. However, it is explained by the
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learned Government Advocate (crl.side) that when a special
wing like NIBCID, where the operations are only based on
prior intelligence and on information, frequent registration of
F.I.R., is very rare. Unless and until there is some chance
recovery. Even in those circumstances, when a team of Police
proceeds towards spot based on specific information, or
otherwise, it is natural that they will know the last crime
number registered in their Station. It is also possible for the
Police immediately after seizure to ascertain the crime
number over phone from the Station. In some cases, the
witnesses are able to explain how the crime number finds
place even in the documents which are supposed to have been
prepared prior to the registration of the case. In some cases,
they omit to explain. In any event, the mentioning of the
crime number in contraband and other documents is for the
sake of identification. At times, the crime number would have
been written subsequently also. The failure on the part of the
prosecution witness to explain per se will not render the
seizure illegal or vitiate the prosecution. The Court has to look
into overall evidence collected by the prosecution and the
proof of the same and 'whether any prejudice caused to the
accused otherwise'.
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12.5.6. The similar contention was raised before the Hon'ble
Supreme Court in Parveen Kumar v. State of Delhi reported in 2013 SCC
and the relevant paragraphs is as follows:-
“11.In the context of the fact that Column no. 11 in
the FIR mentioned the words “PM conducted”, Ms. Kapoor
contended that the words “to be” between the words “PM”
and “conducted” appear to have been skipped. The FIR was
recorded at 2.25 a.m. on 7.5.2000 and the postmortem was
conducted at 12.30 p.m. on the same day and this is borne
out by the aforesaid two documents. Merely because the
words “Postmortem conducted” appear in the FIR, the
contents of the FIR will not be rendered false. It is trite that
any act of omission or commission or an irregular act of the
Investigating Officer cannot result in throwing out the
entire case of the Prosecution, more so as the contents of the
rukka and the FIR are identical and both the said documents
bespeak of the presence of the eye witness at the time of the
incident. Learned APP contended that in any event the
aforesaid submission of the defence deserved no consideration
for a similar plea made before the Hon'ble Supreme Court in
the case of Radhey Sham v. State of Haryana, (2001) 10 SCC
206 was not countenanced by the Supreme Court. In the said
case, it was submitted on behalf of the Appellant that since
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the FIR number was mentioned on the Recovery Memo,
therefore, it was apparent that the FIR was first registered
and thereafter the Recovery Memo was prepared. Rejecting
this contention, the Supreme Court opined:—
“In our view, the aforesaid submissions deserve no
consideration because with regard to the FIR, FIR number
is mentioned on the recovery memo but that would not
vitiate the recording of FIR.”
12.5.7.The similar contention was raised before the High Court of
Punjab and Haryana in Mohan Singh Vs. State of Punjab reported in
2007 SCC OnLine P&H 95. The relevant paragraph is as follows:-
“11. Counsel for the accused-appellants has next
argued that after effecting recovery of the contraband vide
recovery memo Ex.PG, Ruqa Ex.PH was sent to the police
station for registration of the case and in the meantime,
PW-2 Inspector Chuhar Singh prepared the rough site
plan Ex.PK and Jama-talasi Memos., Ex. PL, PM and PN
and all the said exhibits, namely, Exhibits PG, PK, PL,
PM and PN contain FIR numbers and it gives an
inference that the FIR was registered prior to the alleged
recovery, which creates doubt about the veracity of the
prosecution. The contention is again meritless in view of
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the dicta of the Hon'ble Supreme Court in Radhey
Shyam v. State of Haryana, (2001) 10 SCC 206, wherein
similar argument was advanced and it was held that the
same would not vitiate recording of the FIR and the
conviction of the accused. Apart from this, a bare perusal
of the memos. Exhibits PG, PK. PL, PM and PN reveals
that FIR number was initially not filled appearing against
those columns and the space was left blank and that FIR
number was subsequently added after coming to know of
the FIR number, which if seen with a naked eye, is with a
different ink. Therefore, the defence cannot derive any
benefit from the same.”
12.5.8. The similar contention was raised before the Hon'ble
Supreme Court in Naushad & Ors. Vs. State (NCT of Delhi) reported in
2009 SCC OnLine Del 3520. The relevant paragraph is as follows:-
“47. As regards the submission that the number of FIR
registered in the present case is mentioned in the seizure memo
Ex.PW-26/C, suffice would it be to state that the investigating
officer Inspector Harshvardhan PW-26, has not been cross-
examined with respect to said aspect of the matter. No
suggestion was given to the investigating officer that seizure
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memo Ex.PW-26/C was prepared only after the registration of
the FIR and for that reason, the number of the FIR came to be
mentioned on the top of the seizure memo. Possibility cannot
be ruled out that the investigating officer mentioned the
number of the FIR on the seizure memo, after the receipt of the
formal FIR from the police station. Having given no
opportunity to the investigating officer to explain the
circumstance pertaining to mentioning of the number of the
FIR in the seizure memo Ex.PW-26/C no adverse inference can
be taken against the prosecution. In taking the said view, we
are supported by the decisions of Supreme Court reported as
Rahim Khan v. Khurshid Ahmad AIR 1975 SC 290, State of
UP v. Anil Singh 1988 (Supp) SCC 686 andSunil Kumar v.
State of Rajasthan (2005) 9 SCC 298.
48. In said regards, it is also relevant to note the decision
of Supreme Court reported as Radhey Shyam v. State of
Haryana (2001) 10 SCC 206 wherein it was observed as
under:-
“Learned counsel for the appellant further submitted that FIR
number is mentioned on the recovery memo and therefore it is
apparent that FIR was first registered and thereafter the
recovery memo was prepared. He has also submitted that
sealing of the article seized was also not proper. No
independent witness was examined nor was the accused
having any injury even though the van turned turtle. In our
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view, the aforesaid submissions deserve no consideration
because with regard to the FIR, FIR number is mentioned on
the recovery memo but that would not vitiate the recording of
FIR....” (Emphasis Supplied)
49. Therefore, in view of the above discussion, it cannot
be held that the seizure memo Ex.PW-26/C is a manipulated or
fabricated document and that the prosecution case is false.”
As the Bible says “If the salt has lost its flavour,
wherewith shall it be salted?”, or as the ancient Romans used
to say, “Who will guard the Praetorian guards?”
12.6. From the above reading of the precedents and also the
observation of the Hon’ble Supreme Court, the presence of the crime
number cannot be considered as a isolated circumstance to disbelieve the
evidence of the recovery witnesses.
12.7. The presence of crime number in the MOs has no significance
in the recovery of the contraband on the basis of the cogent and
trustworthy evidence of P.W.1 and P.W.2. P.W.1 and P.W.2 clearly
deposed about the recovery of the contraband from the appellants. In this
case, the defense cross-examined about “time of the registration of the case”
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and “time of the recovery” and no further answer was elicited from the
searching officer about his prior knowledge about the last crime number.
Apart from that, they have not also established the prejudice caused to
the presence of the crime number when the recovery was proved through
the cogent and trustworthy evidence of the prosecution witness. Furhter,
the rules of practice demands to note the crime number in the documents
and material objects. There is no material elicited by the defence that the
Investigating Agency mentioned the crime number without any recovery
on the occurrence place. Hence, mere presence of the crime number on
the label affixed on the MO’s, arrest memo, recovery mahazar prior to the
registering the FIR ipso facto will not make the recovery doubtful and the
crime number is being mentioned at the time of producing the
contraband before the Court as per the criminal rules of practice for the
safe and proper custody of the property cannot be found fault with.
Therefore, the said contention of the accused to doubt the recovery is
misconceived and the same is liable to be rejected and accordingly,
rejected.
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13. In view of the above circumstances, the prosecution clearly
proved the case beyond reasonable doubt and this Court finds no merit in
the contention of the learned counsel for the appellants. Hence, the
conviction and substantive sentence imposed against the appellants is
liable to be confirmed.
14. However the contention of the learned counsel for the
appellants that both are inside the prison for more than 7 years and they
are unable to pay the fine amount deserves to be accepted to reduce the
default sentence as held by this Court in similar circumstances in
Crl.A(MD)No.16 of 2016.
15. In the special circumstances of the case, default sentence
imposed against the accused is reduced. Hence, considering the inability
of the appellants in paying the fine amount, this Court is inclined to
reduce the default sentence from 12 months simple imprisonment to 2
months of Simple Imprisonment.
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16. Accordingly, the conviction and sentence passed by the
I Additional Special Court for NDPS Act Cases, Madurai, in C.C.No.647
of 2021 dated 27.09.2023, is hereby confirmed and the default sentence
alone is reduced from 12 months simple imprisonment to 1 month
Simple Imprisonment. The period already undergone by the appellants
is ordered to be set off under Section 428 of Cr.P.C.
17. With the above modification, the Criminal Appeals are partly
allowed.
15.05.2025
NCC :Yes/No
Index :Yes/No
Internet :Yes/No
dss
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K.K.RAMAKRISHNAN.J,
dss
To
1.The I Additional Special Court for NDPS Act Cases,
Madurai.
2.The Inspector of Police,
Karikedu Police Station,
Madurai District.
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.
Crl.A.(MD).Nos.961 & 1036 of 2023
15.05.2025
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