Madrasdated High Court · 2025

Crl.A.Nos.41, 83 & 212 of 2023State rep. by:The Inspector of Police,NIB-CID, Chennai... RespondentPRAYER: Criminal Appeal filed under Section 374(2) of Cr.P.C., praying to set aside the conviction judgment dated 03.01.2023 in CC.No.81 of 2020 on the file of the I Additional Principal Special Court under EC & NDPS Act, Chennai.For Appellants: Mr.K.ThenrajanFor Respondent: Mr.S.Raja Kumar, Additional Public ProsecutorCrl.A.No.212 of 2023Ramaraj... AppellantVs.State rep. by:The Inspector of Police,NIB-CID, Chennai... RespondentPRAYER: Criminal Appeal filed under Section 374(2) of Cr.P.C., praying to set aside the conviction judgment dated 03.01.2023 in CC.No.81 of 2020 on the file of the I Additional Special Court under NDPS Act, Chennai.For Appellant: Mr.K.ThenrajanFor Respondent: Mr.S.Raja Kumar, Additional Public ProsecutorPage 2 of 18 https://www.mhc.tn.gov.in/judis Crl.A.Nos.41, 83 & 212 of 2023COMMON JUDGMENTThese criminal appeals have been preferred against the judgment passed in CC.No.81 of 2020 dated 03.01.2023 by the learned Special Judge, I Additional Special Court for Exclusive Trial of Cases under NDPS Act, Chennai, thereby accused 1 & 2 were convicted for the offence punishable under Sections 8(c ) r/w 20(b)(ii)(C ) of NDPS Act whereas A3 & A4 were convicted for the offence punishable under Sections 8(c ) r/w 20 (b) (ii)(B ) of NDPS Act. 2.The case of the prosecution was that on receipt of secret information, on 21.01.2019, at about 6.00 o' clock, PW1 and three others went to the scene of occurrence to make a surveillance. They received information that the accused persons were trafficking 54 kg of ganja from Andra Pradesh. Therefore, they went to Egmore Railway Station and found the accused persons in possession of contraband weighing 54 kg. After completion of formalities, they registered FIR for the offence punishable under Sections 8(c ) r/w 20(b)(ii)(C ), 27A and 29(1) of NDPS Act. After completion of investigation, they filed final report and the same was taken cognizance by the trial court. Page 3 of 18 https://www.mhc.tn.gov.in/judis Crl.A.Nos.41, 83 & 212 of 20233.In order to bring the charges to home, the prosecution had examined PW1 to PW4 and marked Ex.P1 to Ex.P23. The prosecution had produced material objects as M.O.1 to M.O.12. On the side of the accused, no one was examined and no documents were produced. On perusal of oral and documentary evidences, the trial court convicted the first and second accused for the offences punishable under Sections 8(c ) r/w 20(b)(ii)(C ) of NDPS Act and sentenced them to undergo 10 years rigorous imprisonment with fine of Rs.1,00,000/-, in default, to undergo six months rigorous imprisonment. A3 and A4 were convicted for the offence punishable under Sections 8(c ) r/w 20 (b) (ii)(B ) of NDPS Act and were sentenced to undergo three years rigorous imprisonment with fine of Rs.25,000/-, in default, to undergo three months rigorous imprisonment.4.The learned counsels for the appellants would submit that the prosecution failed to follow the procedure laid down under Section 50 of NDPS Act. There were totally four accused. However, joint search memo was served and joint consent was obtained for search. It is clear violation of provision under Section 50 of NDPS Act. Further, though PW1 received secret information from the informant, it was not recorded Page 4 of 18 https://www.mhc.tn.gov.in/judis Crl.A.Nos.41, 83 & 212 of 2023in the general diary and they also failed to obtain any permission from the superior officer. Though PW1 deposed to that extent, in order to substantiate, the prosecution failed to produce any general diary or permission from the superior officer before the trial court. All the documents such as search memo, search notice, seizure mahasar, arrest report and inspection memo were in typed format. It is not the case of the prosecution that they brought all the equipments to type these documents in the scene of occurrence. Therefore, the prosecution cooked up a case as against the appellants. There was delay in production of contraband before the trial court. The alleged occurrence took place on 21.12.2019. On that date itself, the contraband was seized by PW1 and it was produced before the jurisdictional magistrate. The learned Magistrate directed the respondent to produce the contraband before the concerned court at office working hours. However, they produced the contraband before the trial court only on 30.12.2019. There was delay of 9 days. There is absolutely no proper reason for the huge delay in production of contraband. It is fatal to the case of the prosecution. Though the information received by PW1 states that the persons who are coming from Andhra Pradesh are about to traffic contraband weighing 54 kg, it did not disclose about which train and who are coming in the said train. Page 5 of 18 https://www.mhc.tn.gov.in/judis Crl.A.Nos.41, 83 & 212 of 2023Without even any identification, PW1 and his team themselves went to the 6th platform of Egmore Railway Station, Chennai and found the appellants in possession of ganja. Therefore, the entire case of the prosecution is false one and even then, the trial court mechanically convicted them. 5.Per contra, the learned Additional Pubic Prosecutor appearing for the respondent submitted that all the appellants were found in possession of contraband in their shoulder pocket and white colour polythene bag. Therefore there was no need to conduct search on their body. If their full body was searched, then they have to be issued separate search notice and separate consent from each appellant has to be obtained. Thus, section 50 of NDPS Act is not at all applicable to the case on hand. PW1 categorically deposed that on receipt of secret information, he immediately informed to the superior officer and obtained permission to go to the scene of crime. Therefore, failing to mark the general diary and failing to obtain permission from the superior officer cannot be fatal to the case of the prosecution. Thereafter, the contraband was sent to the chemical analysis and it was found to be ganja and the trial court rightly convicted the appellants and the convictions do not warrant any interference by this Court. Page 6 of 18 https://www.mhc.tn.gov.in/judis Crl.A.Nos.41, 83 & 212 of 20236.Heard the learned counsels appearing on either side and perused, all the materials placed before this Court.7.The case of the prosecution was that on 21.12.2019 at about 4 a.m., PW1 received secret information from the informant that four persons were about to traffic ganja at the Egmore Railway Station. Immediately after recording the said information in writing and obtained permission from the superior officer, the respondent and team had gone to the scene of crime. Though PW1 deposed that he obtained permission from the superior officer, after recording information in writing and also in the general diary, the prosecution failed to produce the general diary and the permission from the superior officer in order to substantiate their evidence. Thereafter, the accused persons were served with search notice. On perusal of Ex.P2, it is revealed that the consent was obtained only from one person. The relevant portion of Ex.P2 is extracted as follows:ma;ah. jh';fs; Twpa nkw;go tptuj;ij ehd; bjhpe;J bfhz;nld;/ vd;id fhty; Ma;thsuhfpa jh';fns j';fSld; nghyPrhh; K:yk; nrhjid bra;a rk;kjpf;fpnwd;/ Page 7 of 18 https://www.mhc.tn.gov.in/judis Crl.A.Nos.41, 83 & 212 of 20238.Though all the accused persons consented for search, the statement looks like it was obtained only from one of the accused. It shows that it was not prepared in the scene of crime. Further, it is also evident that all the documents such as secret information, search information, seizure mahazar, arrest report, inspection memo, etc. were in typed versions. There is no evidence to show that PW1 and his team went to the scene of crime with all equipments such as computer, printer, etc. Therefore, all the documents were already prepared in the police station and a false case was registered against the appellants as if they were found in possession of ganja weighing 54 kg in the sixth platform of Egmore Railway Station, Chennai. In this regard, the Hon'ble Supreme Court of India in the judgment in the case of State of Rajasthan Vs. Parmanand & Anr. rendered in Crl.A.No.78 of 2005 dated 28.02.2014, held as follows:14. In our opinion, a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the Page 8 of 18 https://www.mhc.tn.gov.in/judis Crl.A.Nos.41, 83 & 212 of 2023prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before a nearest gazetted officer or before a nearest Magistrate. Similar view taken by the Punjab & Haryana High Court in Paramjit Singh and the Bombay High Court in Dharamveer Lekhram Sharma meets with our approval. It bears repetition to state that on the written communication of the right available under Section 50(1) of the NDPS Act, respondent No.2 Surajmal has signed for himself and for respondent No.1 Parmanand. Respondent No.1 Parmanand has not signed on it at all. He did not give his independent consent. It is only to be presumed that he had authorized respondent No.2 Surajmal to sign on his behalf and convey his consent. Therefore, in our opinion, the right Page 9 of 18 https://www.mhc.tn.gov.in/judis Crl.A.Nos.41, 83 & 212 of 2023has not been properly communicated to the respondents. The search of the bag of respondent No.1 Parnanand and search of person of the respondents is, therefore, vitiated and resultantly their conviction is also vitiated. 9.In the case on hand, admittedly the respondent obtained joint consent from all the accused. Therefore, it is clear violation of Section 50(1) of the NDPS Act. That apart, it was prepared in the police station itself and it was not prepared in the scene of crime. 10. The learned Additional Public Prosecutor appearing for the respondent relied upon the judgment of the Hon'ble Supreme Court of India in the case of Ajmer Singh Vs. State of Haryana reported in (2010) 3 SCC 746, wherein it was held as follows:"15. The learned counsel for the appellant contended that the provision of Section 50 of the Act would also apply, while searching the bag, briefcase, etc. carried by the person and its non-compliance would be fatal to the proceedings initiated under the Act. We find no merit in the contention of the learned counsel. It requires to be noticed that the question of compliance or non-compliance with Section 50 of the NDPS Act is relevant only where search of a person Page 10 of 18 https://www.mhc.tn.gov.in/judis Crl.A.Nos.41, 83 & 212 of 2023is involved and the said section is not applicable nor attracted where no search of a person is involved. Search and recovery from a bag, briefcase, container, etc. does not come within the ambit of Section 50 of the NDPS Act, because firstly, Section 50 expressly speaks of search of person only. Secondly, the section speaks of taking of the person to be searched by the gazetted officer or a Magistrate for the purpose of search. Thirdly, this issue in our considered opinion is no more res integra in view of the observations made by this Court in Madan Lal v. State of H.P. [2003(4) RCR (Criminal) 100 : (2003) 7 SCC 465]. The Court has observed: (SCC p. 471, para 16) "16. A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises (see Kalema Tumba v. State of Maharashtra [1999(4) RCR (Criminal) 575 : (1999) 8 SCC 257], State of Punjab v. Baldev Singh [(1999) 6 SCC 172] and Gurbax Singh v. State of Haryana [2001(1) RCR (Criminal) 702 : (2001) 3 SCC 28]). The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond Page 11 of 18 https://www.mhc.tn.gov.in/judis Crl.A.Nos.41, 83 & 212 of 2023doubt by the Constitution Bench in Baldev Singh case. Above being the position, the contention regarding non-compliance with Section 50 of the Act is also without any substance."11.However, in the case on hand, admittedly search notice was given to the accused to make a search on their body. Therefore, the above judgment is not applicable to the case on hand. It is also evident from the evidence of the PW1 and the relevant portion of the same is extracted hereunder:eP';fs; murhy; jil bra;ag;gl;l f";rh flj;jp tUtjhf jfty;te;Js;sjhy; c';fis nrhjid bra;a mUfpy; cs;s ePjpj;Jiw eLthplnkh my;yJ murpjH; gjpt[ bgw;w mjpfhhp Kd;ghfnth nrhjid bra;a ntz;Lk; vd;W nfl;gjw;F vd;ogpv!; rl;lk; gphpt[ 50d;go jh';fSf;F chpik cs;sJ vd;Wk; mt;thW jh';fis miHj;Jr; bry;y ntz;Lkh vd;W xU vGj;Jg;g{h;tkhf xU mwptpg;gpd; K:yk; nfl;ljw;F v';fis mt;thbwy;yhk; miHj;Jr;bry;y ntz;lhk;. jh';fns c';fSld; te;j fhty;fSld; v';fis nrhjid bra;ayhk; vd;W brhd;dij me;j mwptpg;gpy; gjpt[ bra;J mth;fsplk; ifbaGj;J bgw;nwd;/ me;j mwptpg;g[ m/rh/M/2 MFk;/ Page 12 of 18 https://www.mhc.tn.gov.in/judis Crl.A.Nos.41, 83 & 212 of 202312.Therefore, the search notice was served to the accused to make a search on their body. Hence, joint search notice and joint consent from the accused are clear violation of provisions under Section 50 of NDPS Act. Insofar as production of contraband before the trial court is concerned, there was delay of 9 days. The alleged contraband was seized from the accused on 21.12.2019 and the same was produced before the jurisdictional magistrate, however at about 7.15 p.m. Therefore, the respondent was directed to produce the contraband before the court concerned at office working hours. But the respondent produced the contraband before the trial court only on 30.12.2019. There was delay of 9 days, for which there was absolutely no explanation by the prosecution. In this regard, it is relevant to rely upon the judgment of the Hon'ble Supreme Court of India in the case of K.Ranjithkumar Vs. Inspector of Police, NIBCID, Chennai rendered in Crl.A.No.324 of 2012 dated 04.01.2019, wherein it was held as follows: “In the case of State of Rajasthan v. Gurmail Singh, the Hon'ble Apex Court in Appeal (Crl.) No.1179 of 1999, by Judgment dated 23.02.2005 has given the following finding:"Sri Ganganagar in Sessions Case No.15 of 1995. The Respondent preferred an appeal before the High Page 13 of 18 https://www.mhc.tn.gov.in/judis Crl.A.Nos.41, 83 & 212 of 2023Court which was allowed by the High Court by its impugned judgment and order. We have perused the judgment of the High Court. Apart from other reasons recorded by the High Court, we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the malkhana on 20th May, 1995, the Malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW-6 on June 5, 1995. We further find that no sample of the seal was sent along with the sample to Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent. We find no error in the judgment of the High Court. This appeal is, therefore, dismissed.Moreover when the remand Magistrate passes an order stating that, the property be produced before the trial Court, it should be treated only as an immediate production of the same, which means at least on the next working day. In this context, the prosecution always make a theory stating that, only on receipt of the case Page 14 of 18 https://www.mhc.tn.gov.in/judis Crl.A.Nos.41, 83 & 212 of 2023documents by the trial Court, the contraband can be produced through Form No.95 before the trial Court, for which there is no time limit prescribed. 38. This lacuna will always create a suspicion in the minds of the Court that, there is absolutely no fool proof system available to the prosecution to keep the contraband intact from the date of seizure till the date of production before the trial Court, assuming that it had been kept in between at the safety room or property room allegedly available in the police station itself.39. In this context, it is further to be noted that, in the absence of any register to note down the date and time of keeping the contraband in the safe custody of the property room attached with the police station concerned and also in the absence of proof to show that, the property room attached with the police station is safely guarded round the clock by separate guard, the system claimed as fool proof one, by the prosecution, cannot be accepted. 13.Thus it is clear that the delay in production of contraband before the trial court is a serious error committed by the prosecution and it is fatal to the case of the prosecution. Therefore, in overall circumstances, the prosecution failed to prove the case beyond any Page 15 of 18 https://www.mhc.tn.gov.in/judis Crl.A.Nos.41, 83 & 212 of 2023doubt. These discrepancies and lacuna create suspicion in the minds of this Court and the prosecution fails to prove the charges beyond any doubt. Therefore, the benefit of doubt goes in favour of the accused and the impugned judgment cannot be sustained and the same is liable to be set aside. 14.In criminal jurisprudence, the burden is always on the prosecution to prove its case beyond reasonable doubt. When two views are possible and the one favourable to the accused is equally plausible, the benefit of doubt must necessarily go to the accused. In the present case, the prosecution has failed to discharge its burden convincingly, and the trial Court failed to properly appreciate the infirmities in the prosecution case. Therefore, the conviction and sentence awarded by the trial Court in respect of all the charges against the appellants cannot be sustained and are liable to be set aside.15.Accordingly, these criminal appeals are allowed and the impugned judgment passed in CC.No.81 of 2020 dated 03.01.2023 by the learned Special Judge, I Additional Special Court for Exclusive Trial of Cases under NDPS Act, Chennai is set aside. The bail bond, if any Page 16 of 18 https://www.mhc.tn.gov.in/judis Crl.A.Nos.41, 83 & 212 of 2023executed by the appellants, shall stand cancelled. Fine amount, if any paid, shall be refunded to the appellants forthwith. 21.08.2025Index: Yes/NoNeutral citation: Yes/NoSpeaking/non-speaking orderlokTo1.The learned Special Judge, I Additional Special Court for Exclusive Trial of Cases under NDPS Act, Chennai 2.The Inspector of Police,NIB-CID, Chennai3.The Public Prosecutor,High Court of MadrasPage 17 of 18 https://www.mhc.tn.gov.in/judis Crl.A.Nos.41, 83 & 212 of 2023G.K.ILANTHIRAIYAN, J.lokCrl.A.Nos.41, 83 & 212 of 202321.08.2025Page 18 of 18