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Madras High Court

Mari … vs The Inspector Of Police on 20 February, 2026

2026:MHC:716

CRL A No. 921 of 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 12-02-2026

PRONOUNCED ON : 20-02-2026

CORAM

THE HON'BLE MR.JUSTICE SUNDER MOHAN

CRL A No. 921 of 2023

Mari … Appellant/A2

Vs.

The Inspector Of Police T-5, Thiruverkadu Police Station, Chennai.

[Crime No. 57/2021] … Respondent/Complainant

Prayer: Criminal Appeal filed under Section 374(2) of Cr.P.C., to set aside the Judgment and conviction of the lower Court imposed in C.C.No.133 of 2022 dated 28.07.2023 by the learned Special Judge, I Additional Special Court for Exclusive Trial of Cases under NDPS Act, Chennai and acquit the Appellant herein.

                                  For Appellant:             Mr. C.V.Kumar

                                  For Respondent:            Mr.S.Rajakumar
                                                             Additional Public Prosecutor




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                                                              Judgment

The Criminal Appeal challenges the Judgement dated 28.07.2023

passed in C.C.No.133 of 2022 by the learned Special Judge, I Additional

Special Court for Exclusive Trial of Cases under NDPS Act, Chennai,

convicting the appellant for the offence under Sections 8(c) r/w 20(b) (ii)

(B) and 29(1) of the NDPS Act and sentencing her to undergo rigorous

imprisonment for two years and to pay a fine of Rs.20,000/- in default to

undergo rigorous imprisonment for two months.

2.(a) It is the case of the prosecution that on 22.02.2021 at about

7.30 hours near Kaduvetti Bus Stop at Ottraipalam, Thiruverkadu, the

accused were intercepted pursuant to a secret information received by

PW1 and the first accused was found in possession of 8 Kgs of Ganja and

A2-the appellant herein was found in possession of 5 Kgs of Ganga; that

they were carrying it in two different gunny bags and after completing the

formalities, the appellant along with the other accused were arrested, an

FIR [Ex.P7] in Cr.No.57 of 2021 was registered for the offences under

Sections 8(c), 20(b)(ii)(B) and 29(1) of the NDPS Act and on completion

of investigation, PW4 has filed the final report against the accused for

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the offence under Sections 8(c) r/w 29(1) and 8(c) r/w 20(b)(ii)(B) of the

NDPS Act, before the learned Special Judge, I Additional Special Court

for Exclusive Trial of Cases under NDPS Act, Chennai.

(b) On the appearance of the accused, the provisions of Section 207

Cr.P.C., were complied with and the case was taken on file as

C.C.No.133 of 2022 by the learned Special Judge, I Additional Special

Court for Exclusive Trial of Cases under NDPS Act, Chennai, for trial.

The Trial Court had framed charges against the accused for the offences

under Sections 8(c) r/w 29(1) and 8(c) r/w 20(b)(ii)(B) of the NDPS Act,

and when questioned, the accused pleaded 'not guilty'.

P.W.1 to P.W.4 and marked 9 documents as Ex.P1 to Ex.P9, besides 6

material object as PM.O.1 to PM.O.24. When the accused were

questioned, u/s.313 Cr.P.C., on the incriminating circumstances

appearing against them, they denied the same. The accused neither

examined any witness nor marked any document on their side.

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(d) On appreciation of oral and documentary evidence, the trial

Court convicted the accused for the offence under Section 8(c) r/w 20(b)

(ii)(B) of the NDPS Act and sentenced the accused/A2 as stated above.

Hence, the accused/A2 have preferred the instant appeal challenging the

said conviction and sentence.

3. It is reported that the first accused has not filed any appeal and

had served the sentence.

4. The learned counsel for the appellant/A2 would submit that the

prosecution suffers from several infirmities; that a joint communication

under Section 50 of the NDPS Act, was served, which is illegal; that

though it is the case of the prosecution that the contraband was brought

by the first accused and the second accused/appellant, in two gunny bags,

PW2 would admit in his cross-examination that only one gunny bag was

seized; that though independent witnesses were examined during the

course of the investigation, none of them were examined during trial,

which falsifies the prosecution case; that though 56 gms was taken as a

sample, only 46.7 gms was sent to the expert as could be seen from

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Ex.P6-Chemical Analysis Report; that the contraband was not sent within

72 hours of seizure and was sent almost 25 days after the alleged seizure

and that no document was produced to establish the safe custody of the

contraband from 22.02.2021 to 17.03.2021; and that where the evidence

of police witnesses is full of contradictions and unconvincing, the non

examination of independent witnesses would be fatal to the prosecution

and prayed for acquittal.

5. The learned Additional Public Prosecutor per contra submitted

that the appellant was found in possession of 5 kgs of Ganja and that

though the trial Court had acquitted the appellant for the offence under

Section 8(c) r/w 29(1) of the NDPS Act, the appellant was found guilty of

individual possession; that all the mandatory requirements have been

complied with; that since no seizure was made from the person of the

appellant, non compliance of Section 50 of the NDPS is not fatal to the

prosecution; and that Section 42 and Section 57 of the NDPS Act has also

been complied with and non compliance of Section 52-A of the NDPS

Act, is not fatal as no prejudice is said to have been caused to the

appellant and prayed for dismissal of the appeal.

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6. The prosecution had examined 4 witnesses to prove its case.

PW1 is the Sub-Inspector of Police, who went to the spot to arrest the

appellant and the first accused on secret information. PW2 is the

constable who accompanied PW1 for the said purpose. PW3 is the

Deputy Director of Forensic Science Laboratory, who certified that the

contraband contained cannabinoids and Ganja. PW4 is the investigating

officer who filed the final report.

7. It is the version of PW1 that he had received secret information

at about 6.30 a.m., on 22.02.2021 that two persons were bringing Ganja

from Andhra Pradesh and that they were travelling in a bus from Andhra

to Thiruverkadu, Kaduvetti Bus stand; that based on the information,

PW1 and PW2 were waiting at the bus stand; that the appellant and the

first accused were walking in a suspicious manner; that when PW1

intercepted they attempted to run from the place; that after compliance of

the mandatory requirements, they found that the appellant was in

possession of 5 Kgs of Ganja and first accused was in possession of 8

Kgs of Ganja; that samples were taken and both the accused were arrested

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and FIR was registered. PW2, the Constable who had accompanied PW1

would corroborate the evidence of PW1 in all the above aspects spoken to

by PW1. Except for eliciting from PW2 that only one gunny bag was

seized, no other contradictions or information were elicited so as to

disbelieve their testimony. As stated above, PW3 is the expert who

opined that the samples contained Ganja and PW4 is the investigating

officer and nothing has been elicited in the cross examination so as to

disbelieve his testimony as well.

8. Though it is the case of the defence that independent witnesses

were not examined this Court finds that there is no cross examination of

the investigating officer or the other witnesses to suggest that they cannot

be believed or that the non-examination of the independent witnesses has

caused prejudice to the appellant. It is well settled that the police

witnesses cannot be viewed with suspicion and if their evidence inspires

confidence then non-examination of independent witnesses would not be

fatal to the prosecution. In this case the witnesses have not been

discredited.

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9. The submission made by the appellant is that the prosecution had

seized two bags and that PW2 had admitted that only one bag was seized.

However in the further cross examination, PW2 would state that he does

not remember the said facts. Therefore, this Court is of the view that, that

the said contradiction would not affect the prosecution case in any

manner.

10. The other submission made by the learned counsel for the

appellant is that the seized contraband was not sent immediately for

expert analysis. Nothing has been elicited from PW3, who had conducted

the examination to show that the seals were not intact. The cross-

examination of PW3 is more in the form of suggestions and nothing has

been elicited to disbelieve the evidence of PW3. Further discrepancy of 6

grams in the weight of the sample would not have any bearing as it is

well known that if the leaves are dried, the weight would get reduced.

11. Further, the joint notice/communication to the appellant/A2

and the first accused under Section 50 of the NDPS Act could not be fatal

to the prosecution case in the facts and circumstances of the case, as

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admittedly, the contraband was seized from a bag in possession of the

appellant and not from her person. Therefore, this Court is of the view

that the contraventions alleged by the defence would not be of any avail

to the appellant. Therefore this Court finds no infirmity in the judgment

convicting the appellant for the aforesaid offences.

12. However, it is seen from the records that the appellant is aged

60 years that she has no bad antecedents. She is suffering from acute

promleyocytic, thyroid and has breathing problem. She has been

regularly taking treatment at the Stanley Hospital and has been an

inpatient in the said hospital multiple times.

13. Considering all the above facts and the fact that the prosecution

had not established the link between the first accused and this appellant,

this Court is of the view that interest of justice would be met if the

sentence imposed on the appellant is reduced to the period already

undergone as it is stated that the appellant has been in custody for 8

months and 6 days i.e., from 22.02.2021 to 11.05.2021 during

investigation and from 28.07.2023 to 10.01.2024, pending the appeal.

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14. Accordingly, the Criminal Appeal stands partly-allowed and it

is ordered as follows:

(i) The conviction of the appellant by the learned Special Judge, I

Additional Special Court for Exclusive Trial of Cases under NDPS Act,

Chennai, vide judgment in C.C.No.133 of 2022 dated 28.07.2023, for the

offence under Section 8(c) r/w 20(b) (ii)(B) of the NDPS Act, is

confirmed.

(ii) However, the sentence imposed by the trial Court for the said

offence i.e., to undergo two years rigorous imprisonment, is reduced to

that of period already undergone.