Madras High Court
Solaiyappan vs The Intelligence Officer on 15 May, 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 17.12.2024
Pronounced On : 15.05.2025
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
Crl.A.(MD).No.308 of 2022
Solaiyappan ... Appellant
Vs.
The Intelligence Officer,
Narcotics Control Bureau,
Madurai
NCB F.No.48/1/03/2019/NCB-MDU ... Respondent
PRAYER: Criminal Appeal has been filed under Section 374 of Criminal
Procedure Code, to call for the records in C.C.No.119 of 2019 relating to
the judgment dated 12.01.2022 passed by the learned Additional District
and Sessions Judge/Presiding Officer, Special Court for EC & NDPS Act,
Cases, Pudukkottai and set aside the judgment of conviction on the
appellant/accused.
1/13
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For appellant : Mr.R.Pon Karthikeyan
For respondent : Mr.C.Arul Vadivel @ Sekar
Special Public Prosecutor
JUDGMENT
Sole accused in C.C.No.119 of 2019 on the file of the learned
Additional District and Sessions Judge/Presiding Officer, Special Court
for EC & NDPS Act cases, Pudukkottai, has filed this Criminal Appeal
before this Court challenging the conviction and sentence imposed upon
him by the impugned judgment dated 12.01.2022. The conviction and
sentence is as follows:
Conviction for the Offence under Sentence of Imprisonment
Section
8(c) r/w 21(c) of the NDPS Act 10 years R.I and to pay a fine of
Rs.1,00,000/- in default to
undergo 6 months R.I
8(c) r/w 23(c) r/w 28 of the NDPS 10 years R.I and to pay a fine of
Act Rs.1,00,000/- in default to
undergo 6 months R.I
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2. According to the prosecution, on 24.04.2019 at about 13.00 hours,
P.W.1 received the secret information that the accused was about to travel
to Malaysia by Airflight Scheduled to fly at 23.25 hours and he was
carrying substantial quantity of cough syrup containing narcotic Drugs.
The said information was reduced in writing and informed to his
superior and obtained permission and went to Trichy Airport along with
his team. The team mounted surveillance near X ray scanner in the check-
in area at Trichy Airport. While, P.W.1 was verifying the passport of the
passenger, whose luggage was going through the scanner, he identified
the accused through his passport and found some suspicious item in his
bag. On enquiry, the accused disclosed his name and address and handed
over his passport along with Air Ticket. On verification, it was found that
two more passengers were travelling with him, namely, Uma and
Prakash. They introduced themselves as wife and son of the appellant.
Thereafter, P.W.1 made a search in his bag and found 95 bottles of Eskup
cough Syrup containing Codeine Phosphate, a manufactured Narcotic
Drug under the NDPS Act. P.W.1 recovered the same and took the
sample following the procedure as stated in the NDPS Act. The accused
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voluntarily handed over his belongings in his possession like Aadhar
Card, Driving Licence, Pan Card, Bank ATM Cards, one Smart Phone
with Sim Card, Indian Currency and European Currency. Thereafter, he
arrested the accused and produced him at the NCB Office and registered
the case and produced the accused along with the contraband before the
learned Judicial Magistrate and the investigation was continued by the
investigating officer and he filed the complaint under Section 8(c) r/w
21(c), 23, 28 and 29 of the NDPA Act, 1985 after obtaining the chemical
analysis report and also examining number of witnesses. The learned trial
Judge has taken the same on file in C.C.No.119 of 2019.
4. After appearance of the accused, copies of records were furnished
to him under Section 207 Cr.P.C. The learned Trial Judge, on perusal of
records and on hearing both sides and being satisfied that there existed a
prima facie case against the accused/appellant, framed charges under
Sections 8(c) r/w 21(c), 23, 28 and 29 of the NDPS Act 1985 and the same
were read over and explained to him and on being questioned, the
accused/appellant denied the charges and pleaded not guilty and stood
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for trial.
5.The prosecution, in order to prove its case, had examined 5
witnesses as P.W.1 to P.W.5 and exhibited 35 documents as Ex.P.1 to
Ex.P.35 and marked ten material objects as M.O.1 to M.O.10.
6.When the accused was examined under Section 313(1) (b) of
Cr.P.C., with regard to the incriminating aspects against him, he denied
the evidence as false and further stated that a false case was foisted
against him. The accused neither produced any documents nor examined
any witness on his side.
7.The learned Trial Judge, considering the materials and
circumstances found that the accused in C.C.No.119 of 2019 was guilty
and convicted him for the offences punishable under Section 8(c) r/w
21(c) of the NDPS Act 1985 and Section 8(c) r/w 23(c) r/w 28 of the NDPS
Act, 1985 and acquitted the appellant for the offence under Section 8(c)
r/w 29 r/w 23(c)of the NDPS Act, 1985. Challenging the same, the
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appellant has filed the present appeal before this Court.
8.The learned counsel for the appellant would submit that
according to the prosecution, 95 bottles were recovered in two bags. One
bag contained 5 loose bottles and another bag contained 9 pockets and
each pockets contained 10 bottles, totally 95 bottles were recovered and
samples were taken only from 5 bottles and no sample was taken in the
remaining bottles. Without taking the sample from each bottle, they
treated the case as commercial quantity and considering the age of the
appellant and his health condition, he pleaded this Court to modify the
convition. The learned counsel would further submit that there was
illegal custody for two days from 24.04.2019 to 26.04.2019 and also there
was no explanation for the said delay. Due to the illegal custody, there is
every chance for introducing false materials. The recovery was made in
the Airport in the presence of the translator one Mr.Ganesh, and he was
not examined. Therefore, the non examination of the translator vitiated
the recovery. There was contradictory evidence relating to the bag.
According to his verson “[pg; ,y;yhj 2 igfspy;” recovered. But the
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evidence is that the appellant opened the zip. Therefore, this material
contradiction coupled with the illegal custody of two days creates a doubt
over the prosecution case. The bag was not recovered. In Ex.P19, there is a
mention about one person by name Segu Buhari, Even though he
accompanied the appellant he was not implicated in this case. Therefore,
there is a doubt over the prosecution case. The origin and destination of
the contraband was not proved and he also placed reliance on the
judgment in the case of Mohidersingh vs, State of Punjab reported in 2017
AIR 689 where the Hon'ble Supreme Court observed that the
investigation must be relating to the origin and destination of the
contraband, otherwise, said lapse amounts to defective investigation and
also the same is a ground for acquittal. He would also submit that no
other incriminating material was recovered from the house search of the
appellant. Therefore, he pleaded that there was no conscious possession
of the contraband.
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9. Thiru.C.Arul Vadivel @ Sekar, learned Special Public Prosecutor
appearing for the respondent would submit that there was no doubt over
the recovery with regard to Ex.P19 and about the mentioning of one Segu
Buhari, it was a mistake and the same was explained by P.W.1, P.W.3 and
P.W.5. The non examination of the Airport authorities is not fatal when
the evidence of P.W.1 to P.W.3 are cogent and trustworthy. Totally 9 ½
liters was seized and 100 grams was taken as a sample and therefore,
there is no necessity to take sample in each bottle. Therefore, he seeks to
dismiss the appeal.
10.This Court considered the rival submissions made by the learned
counsel appearing for the appellant and the learned Special Public
Prosecutor appearing for the respondent and perused the materials
available on record and the precedents relied upon by them.
11.The question 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
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appellant can be sustained or not?
12.P.W.1 is the Intelligence Officer, NCB, Madurai, and he received
the information on 24.04.2019 at about 13.00 hours about the illegal
transportation of Eskuf Cough Syrup from India to Malaysia by Malindo
Airflight Scheduled to fly at 23.25 hours and reduced the same in writing
and submitted to his superior P.W.3. Thereafter, he went to the Airport
and intercepted the appellant in the presence of Airport Officers, namely,
P.W.2 and recovered his bag. In the said bag, they recovered 5 bundles of
Eskuf Cough Syrup and in each bundle there were 10 bottles of Eskuf
Syrup. They recovered the said bottles in the presence of P.W.2. P.W.2
clearly deposed about the same. During the recovery proceedings the
help of one translator was used. The appellant showed the bag and in the
said bag, 95 bottles of the Eskuf Cough Syrup was found. In Ex.P.19, it is
specifically referred that one Segu Buhari handed over the bag, but he
was not arrayed as accused. In respect of that, they gave an explanation
that the same was mistake. This Court is unable to accept the said
explanation when the document clearly states that the contraband was
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received from one Segu Buhari and the same was also admitted and
explained during the course of cross examination. This Court has some
doubt about the recovery from the appellant. Even the charge is only
against the appellant that he has conspired with one Rajagopalan and
Satheeshwaran and the trial Court acquitted the appellant from the
charge of conspiracy. Even the remaining contraband was recovered from
the “[pg; ,y;yhj 2 igfspy;”. In this aspect also there is a material
contradiction. According to the evidence, the appellant opened the zip.
Futher, there was a illegal detention from 24.04.2019 at 11.25 hours to
26.04.2019. Even though they caught the appellant on 24.04.2019, there is
no explanation relating to serving at arrrest memo on 28.01.2019 at 04.30
pm. Though it is not a material circumstance, but, in view of the specific
averment in Ex.P19 that the contraband was handed over by Segu Buhari
and also the material contradiction relating to the zip and absence of
drawing samples from each bottles, all create reasonable doubt over the
prosecution case. When Ex.P19 clearly states that the recovered articles
were handed over by Segu Buhari and the non-examination of the
translator who translated the version of the appellant also creates doubt
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over the prosecution case. That apart, the origin and destination of the
contraband also is not proved, which is material in this case.
13. Therefore, this Court finds that the prosecution has not clearly
proved the charge against the appellant and this Court is inclined to
acquit the appellant from all the charges framed against him.
14.In the result, this Criminal Appeal stands allowed in the
following terms:
14.1. The conviction under Section 8(c) r/w 21(c) and under Section
8(c) r/w 23(c) r/w 28 of NDPS Act, 1985 passed by the learned
Additional District and Sessions Judge for NDPS Act cases, Pudukkottai,
dated 12.01.2022, in C.C.No.119 of 2019, is hereby set aside.
14.2. The appellant is acquitted from all the charges in C.C.No.119
of 2019, vide judgment dated 12.01.2022 passed by the learned
Additional District and Sessions Judge for NDPS Act cases, Pudukkottai.
14.3.Fine amount, if any, paid by the appellant shall be refunded to
the appellant forthwith.
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14.4.Bail bond executed by the appellant shall stand cancelled.
Consequently, connected miscellaneous petition is closed.
15.05.2025
NCC :Yes/No
Index :Yes/No
Internet :Yes/No
sbn
To
1.The Special Court for EC and NDPS Act cases,
Pudukkottai.
2.The Intelligence Officer,
Narcotics Control Bureau,
Madurai.
3.The Special Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
4.The Section Officer,
Criminal Section (Records)
Madurai Bench of Madras High Court,
Madurai.
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K.K.RAMAKRISHNAN.J,
sbn
15.05.2025
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