High Court · 2025

Crl.A.No.50 of 2023IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 03.12.2025CORAMTHE HONOURABLE MR.JUSTICE SUNDER MOHANCrl.A.No.50 of 2023Shajakhan ... Appellant/Sole AccusedVs.State Represented byThe Inspector of Police,NIB, C.I.D Police Station,Coimbatore.(Crime No.275 of 2017) ... Respondent/ComplainantPrayer: Criminal Appeal filed under Section 374(2) of Criminal Procedure Code, 1973, to call for the records and to set aside the judgment and sentence dated 20.12.2022 imposed in C.C.No.102 of 2020 passed by the learned Special Court under EC Act / NDPS Act, Coimbatore. For Appellant: Mr.R.VivekananthanFor Respondent: Mr.S.Raja Kumar, Additional Public ProsecutorJUDGMENTThe Appeal challenges the judgment of conviction and sentence imposed by the learned Additional District Judge and Presiding Officer, Special Court under E.C Act / NDPS Act, Coimbatore in C.C.No.102 of Page No.1 of 10 https://www.mhc.tn.gov.in/judis Crl.A.No.50 of 20232020. By the impugned Judgment, the appellant was convicted for the offences under Section 8(c) r/w 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and sentenced to undergo ten years R.I. And to pay fine of Rs.1,00,000/- and in default to undergo imprisonment for two years R.I.2. It is the case of the prosecution that the P.W1 received a secret information on 14.02.2017, at about 9.00 a.m., that a person is likely to be found at Gandhipuram Bus Stand with ganja; that on receiving the said information, P.W1 along with P.W2 and one Karnan (not examined) went to Gandhipuram Bus Stand. The informant identified the appellant at Gandhipuram Bus Stand at about 10.00 a.m. The appellant was searched and was found in possession of 16 kgs of ganja in a white plastic bag and thus committed the aforesaid offences.3. Mr.R.Vivekananthan, learned counsel for the appellant would submit that the impugned prosecution is false; that it has been instituted because, in an earlier prosecution, the appellant was acquitted; that only to wreak vengeance, the respondent had filed the F.I.R and sought to prosecute Page No.2 of 10 https://www.mhc.tn.gov.in/judis Crl.A.No.50 of 2023the appellant; that all the witnesses admitted that even before they searched the appellant, the answer to the questions under Section 50 of the NDPS Act was also typed; that the prosecution could have never anticipated the response of the appellant; that in the seizure mahazar, which was already typed, it was stated that the contraband was brought in a plastic cover and only the colour of the cover was filled in; that even according to the respondent, the secret informant had not specifically stated that the appellant was carrying contraband in a cover; that the appellant was earlier prosecuted in C.C.No.7 of 2018 and thereafter, the respondent has filed this case only because the appellant was acquitted in that case. P.W2, who was examined in C.C.No.7 of 2018, had denied having deposed in the said case; P.W3 however contradicted the statement and would state that P.W2 was one of the witness in C.C.No.7 of 2018 and that therefore, the impugned prosecution is false and the judgment of the trial Court is liable to be set aside.4. The learned Additional Public Prosecutor, per contra would submit that compliance of Section 50 of the NDPS Act was not mandatory in this case, as the contraband was found only in a plastic cover, which was carried Page No.3 of 10 https://www.mhc.tn.gov.in/judis Crl.A.No.50 of 2023by the appellant; that the appellant had not established that the case was foisted against him; that merely because the printed formats were used, it would not be fatal to the prosecution case and that there is no infirmity in the judgment of the trial Court. 5. As stated earlier, it is the case of prosecution, the appellant was found in possession of of 16 kgs of ganja. The prosecution had examined three witnesses. P.W1 and P.W2 on receiving the secret information, intercepted the appellant at the bus stand and found that the appellant was in possession of 16 kgs of ganja. In their depositions, they have stated that they had complied with the mandatory provisions under NDPS Act, that samples were taken and the samples were found containing ganja. It is seen that various documents were marked by the prosecution through P.W1. Three documents would be relevant for the consideration of the appeal. Ex.P1 is the record of the secret information said to have been received by P.W1. Ex.P2 is the record of proceedings under Section 50 of the NDPS Act, seeking the petitioner's consent to search him. The officers had also explained to him that he has a right of being searched in the presence of the Judaical Magistrate. The said document is in printed form. P.W1 cannot be Page No.4 of 10 https://www.mhc.tn.gov.in/judis Crl.A.No.50 of 2023faulted, if the questionnaires are in a printed form. However, strangely the answer of the appellant has also been typed form. P.W1 had admitted in his cross examination that the printout of Ex.P2 was taken at the police station after he had received the secret information. Very strangely, P.W1 had taken the printout containing the answer even before conducting the search. The relevant portion of P.W1 evidence reads as follows:-“Ex.P1, P2, P3, Mfpa Mtz';fs; fzpdpapy; gpupz;l; mt[l; vLf;fg;gl;l ifahy; vGjp epug;gl;Ls;sJ vd;why; rupjhd;/ vd;dplk; fhz;gpf;fg;gLk; Ex.P1, P2, P3, Mfpa Mtz';fspy; fzpdpapy; jl;lr;R bra;J gpupz;l; mt[l; vLf;fg;gl;l gFjpfs; fhty; epiyaj;jpy; fzpdpapy; Vw;fdnt gjpntw;wk; bra;ag;gl;oUf;Fk; vd;why; rupjhd;/ mt;thW Ex.P2, P3 Mfpa Mtz;fs; rk;gt ,lj;jpw;F fhty; epiyaj;jpypUe;J gpupz;l; mt[l; vLj;J bfhz;L bry;yg;gl;lJ vd;why; rupjhd;/ ,ufrpa jfty; fpilj;jw;F gpwF gpupz;l; mt[l; vLf;fg;gl;ljh vd;why; ,ufrpa jfty; fpilj;j gpwF jhd; gpupz;l; mt[l; vLf;fg;gl;lJ/ vd;dplk; fhl;lg;gLk; ,ufrpa jfty; mwpf;ifapy; ,ufrpa jfty; fpilj;j neuk;. kw;Wk; ,lk; Mfpait gpupz;l; mt[l; bra;ag;gltpy;iy vd;why; mit ifahy; vGjg;gl;Ls;sJ vd;W brhd;dhy; rupjhd;/ cz;ikapnyna ,ufrpa jfty; fpilj;jpUe;jhu; Page No.5 of 10 https://www.mhc.tn.gov.in/judis Crl.A.No.50 of 2023mJt[k; fzpdpapy; gjpntw;wk; bra;ag;gl;L gpupz;l; mt[l; vLf;fg;gl;oapUf;Fk; vd;W brhd;dhy; ,ufrpa jfty; fpilj;J ifahy; vGjg;gl;lJ”6. Ex.P3 is the seizure mahazer. The said document is also in a printed format. Column 6, which contains the details of contraband seized, states that the contraband was in a plastic bag. What was filled in the said printed form is the color of the plastic bag. It is not known how P.W1 came to know that the contraband was likely to be brought in a plastic bag. The informant has not stated admittedly about the manner in which the contraband was likely to be brought by the appellant. Therefore, this Court is of the view that the two documents Ex.P2 and Ex.P3 were prepared at the police station even before the search and seizure were made. Therefore, the search and seizure of the contraband is highly doubtful.7. Be that as it may, the appellant admittedly was an accused in C.C.No.7 of 2018 and was charged for the offence under NDPS for possession of 1.5 kgs of ganja. It appears that P.W1 was examined as P.W2 in the said case. When the defence counsel had confronted P.W2 about the Page No.6 of 10 https://www.mhc.tn.gov.in/judis Crl.A.No.50 of 2023earlier case, he denied knowledge of the case in C.C.No.7 of 2018 and deposed that he did not remember whether he was a witness in that case. It is the specific case of the appellant that since the appellant was acquitted in the said case, the respondent had foisted the present case. There was no reason for P.W2, to have deposed in that manner. The relevant portion of P.W2's evidence reads as follows:-“M$u; vjpupia tHf;F rk;gtj;jpw;F Kd;ng vdf;F bjupa[k; vd;W brhd;dhy; bjupahJ/ 31/08/2017 md;W vd;$pgprpIo nfhit gpuptpy; vjpup kPJ 1/500 fp/fp/ fQ;rh itj;jpUe;jjhf tHf;F gjpt[ bra;ag;gl;lJ vd;why; bjupahJ/ me;j tHf;fpy; ehd; ifg;gw;Wjy; kfru; rhl;rpahf ,Ue;njd; vd;why; Qhgfk; ,y;iy/ me;j tHf;fpy; C.C.No.7 of 2018 y; m/rh/2 Mf tprhupf;fg;gl;Ls;nsd; vd;wy; Qhgfk; ,y;iy/ me;j rkaj;jpy; vd;id jtpu ntW ahnuDk; nfhtpe;juh$; vd;w bgaupy; vd;Igp rpIo gpuptpy; gzpg[upe;jhu;fsh vd;why; ,y;iy/” 8. Unfortunately, for P.W2, P.W3 - the Investigating Officers had admitted that there was a case against this appellant and tried in C.C.No.7 of 2018 that P.W2 (Govinda Raj) was a witness in the said case. The relevant Page No.7 of 10 https://www.mhc.tn.gov.in/judis Crl.A.No.50 of 2023portion of P.W3 evidence reads as follows:-“vjpup kPJ v';fs; fhty; epiyaj;jpy; 31/08/2017 md;W 179-2017 vd;w tHf;fpid gjpt[ bra;J mjpy; ehd; tprhuiz mjpfhupahf ,Ue;njd; vd;W brhd;dhy; rupjhd;/ ,t;tHf;fpy; rhl;rpfshf Fwpg;gplg;gl;Ls;s fu;zd; kw;Wk; nfhtpe;j uh$; nkw;go tHf;fpy; nrhjid tpUg;g fojk; kw;Wk; ifg;gw;Wjy; kfru; rhl;rpfhs cs;shu;fs; vd;why; rupjhd;/”9. Though this alone would not be a ground for acquitting the appellant, the other circumstances makes this Court hold that the version of the appellant that a false case has been foisted is probable. 10. As stated earlier, the search and seizure is improbable as the documents related to search and seizure were prepared even before they were made. The answers to the questions under Section 50 were typed even before the alleged search and arrest. Considering the overall circumstances, this Court is of the view that the P.W1 to P.W3 cannot be believed and the conviction cannot be sustained on their evidence. Page No.8 of 10 https://www.mhc.tn.gov.in/judis Crl.A.No.50 of 202311. Accordingly, the impugned judgment of conviction and sentence by the learned Additional District Judge and Presiding Officer, Special Court under E.C Act / NDPS Act, Coimbatore in C.C.No.102 of 2020 dated 20.12.2022 is set aside and this Criminal Appeal stands allowed. 03.12.2025Index : Yes/NoSpeaking Order/Non Speaking OrderMacTo1. The Special Court under EC Act / NDPS Act, Coimbatore.2.The Inspector of Police, NIB, C.I.D Police Station, Coimbatore.3.The Public Prosecutor, High Court, Madras.Page No.9 of 10 https://www.mhc.tn.gov.in/judis Crl.A.No.50 of 2023SUNDER MOHAN, J.MacCrl.A.No.50 of 202303.12.2025Page No.10 of 10