High Court · 2025

Crl.M.P.(MD)No.1677 of 2025BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26.02.2025CORAMTHE HONOURABLE MR JUSTICE B.PUGALENDHICrl.M.P.(MD)No.1677 of 2025in Crl.A.(MD)No.966 of 2024A.Cruz Roy,S/o.C.Anton,218-B/6/1, George Road,Telephone Colony, Tuticorin.Petitioner(s) VsState of Tamilnadu, Rep. byThe Superintendent of Customs,Special Intelligence and Investigation Branch,Customs House, New Harbour Estate,Tuticorin District.Respondent(s)For Petitioner(s): Mr.V.Kathirvelu, Senior Counselfor Mr.K.Prabhu, AdvocateFor Respondent(s): Mr.K.GurunathanSpecial Public Prosecutor 1/9 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.1677 of 2025ORDERThe petitioner is the 2nd accused in C.C.No.125 of 2017 on the file of the IAdditional Special Court for NDPS Act Cases, Madurai. After the trial, the trialCourt, by its Judgment dated 21.10.2024, found the petitioner guilty for the offenceunder Section 8(c) r/w. 20(b)(ii)(C) of NDPS Act and convicted and sentenced him toundergo 12 years rigorous imprisonment and to pay a fine of Rs.1,00,000/-, with thedefault sentence of two years simple imprisonment. Challenging the Judgment ofconviction and sentence, the petitioner has preferred an appeal in Crl.A.(MD)No.966of 2024 along with the petition in Crl.M.P.(MD)No.1677 of 2025 seeking to suspendthe sentence. The Criminal Appeal was admitted by this Court on 12.11.2024. 2. The learned Senior Counsel appearing for the petitioner submits that thepetitioner is a shipping agent and he is having a pass to enter into the Port Trust. Thefirst accused is a clearing and forwarding agent. On 14.03.2016, P.W.2-Inspector ofCentral Industrial Security Force, who was on duty, searched the petitioner's vehicleon certain information and found 2 kgs. of ganja oil concealed in a plastic carry bag ina two-wheeler and recovered the same from the petitioner. Even according to theprosecution, this ganja oil was handed over by the 1st accused to the petitioner alongwith a two-wheeler. The 1st accused handed over the same to the 2nd accused as it is amedicine and requested him to hand over the same to a person in a vessel inside the2/9 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.1677 of 2025port. Therefore, the petitioner, without having any knowledge about the contraband,had taken the contraband in the two-wheeler, which belonged to the 1st accused.Since the ganja oil has been recovered from the petitioner, the prosecution has beenlaunched as against the petitioner and 1st accused. But, the 1st accused was notarrested immediate to the occurrence and he was arrested only during the trial.However, with the available materials, the prosecution has filed the final report as ifthe petitioner had a conscious possession of the contraband. 3. The learned Senior Counsel appearing for the petitioner further submits thatthe trial Court has acquitted the 1st accused as there was no recovery from the 1staccused. However, the trial Court has failed to consider the fact that the two-wheeler, in which the contraband was recovered, belonged to the 1st accused. Thelearned Senior Counsel further submits that the petitioner, even in his statementrecorded under Section 67 of NDPS Act, stated that it was handed over by 1st accusedas it is a medicine which needs to be handed over to a person in a vessel. Accordingto the learned Senior Counsel, the petitioner was not having any consciouspossession of the contraband and he is not having any antecedents and the two-wheeler, in which the contraband was seized, does not belong to him. The petitioneris a shipping agent and he is having a pass to enter into the port. Therefore, it washanded over by 1st accused to the petitioner and without having any knowledge3/9 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.1677 of 2025about the same, it was taken by the petitioner. Based on that, the petitioner was fixedas an accused, for which, he was imposed with a punishment. 4. The learned Senior Counsel appearing for the petitioner has also pointed outthat the mandatory provisions of Sections 42, 50 and 57 of NDPS Act were notcomplied with. The entire prosecution has relied on the confession statementrecorded under Section 67 of NDPS Act and the recovery made from the petitioner.The learned Senior Counsel further submits that the investigating agency has notcollected any materials that the petitioner had knowledge about the contraband andhe had nexus with the 1st accused. The learned Senior Counsel has also pointed outthat the petitioner is in jail from the date of Judgment, i.e. on 21.10.2024 and evenduring the trial, he was in jail from 15.03.2016 to 07.10.2016. 5. The learned Senior Counsel further submits that even according to theprosecution, the contraband was that of the 1st accused and the same was handedover by the 1st accused to the petitioner to deliver the same to a person in a vesselinside the port. He further submits that the trial Court has acquitted the 1st accusedfrom the charge. But, the prosecution has not taken any initiative to file an appeal asagainst the acquittal of the 1st accused.6. The learned Special Public Prosecutor submits that the contraband has beenrecovered from the two-wheeler driven by the petitioner on the date of occurrence.4/9 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.1677 of 2025This was also recovered inside the port. The petitioner, a shipping agent, was havinga pass to enter into the Port. The petitioner, by taking advantage of the pass, hadillegally transported the ganja oil to hand it over to a person in the vessel. In theevent, if the petitioner is an innocent, then, he must know to whom the contrabandhas to be delivered. The statement of the petitioner that he is not having anyknowledge about the contraband, cannot be accepted in view of the provisions underSection 35 of NDPS Act. 7. The learned Special Public Prosecutor further submits that the petitioner hasto prove his case that he is not having any knowledge about the contraband, whichwas recovered from his possession. Further, the petitioner has not adduced anyevidence to rebut the presumption cast upon him under Section 35 of NDPS Act. Hefurther submits that there is no violation of provisions under 42, 50 and 57 of NDPSAct and all the points raised by the Senior Counsel for the petitioner were consideredby the trial Court in detail. He further submits that the petitioner has not paid thefine amount.8. In support of his arguments, the learned Special Public Prosecutor has alsorelied on the following Judgments:(a) State of Kerala vs. Rajesh (AIR 2020 (SC) 721(b) State of (GNCT of Delhi) Narcotics vs. Lokesh Chadha (AIR5/9 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.1677 of 2025(online) 2021 (SC) 117)(c) State of Himachal Pradesh vs. Pawan Kumar (AIR 2005 SCC2265)(d) Ranjan Kumar Chadha vs. State of Himachal Pradesh(Crl.A.Nos.2239-2240 of 2011)(e) Meenakshi Sundaram @ Sundhar vs. State (Crl.A.(MD)Nos.614, 616 and 629 of 2022)(f) Mahendran @ Auto Mahendran vs. State (Crl.A.(MD)No.570 of2022)(g) State of Punjab vs. Makhan Chand (AIR 2004 (SC) 3061(h) NCB vs. Kashif9. This Court considered the rival submissions.10. The petitioner was found guilty and convicted for the offence under Section8(c) r/w. 20(b)(ii)(C) of NDPS Act, by Judgment dated on 21.10.2024. He is in jailfrom the date of Judgment, i.e. from 21.10.2024 and he was also in jail during the trialfrom 15.03.2016 to 07.10.2016. 11. Admittedly, the petitioner is a shipping agent having a pass to enter into theport trust. On the date of occurrence, he had entered into the port trust with a passwhich was provided to him and near the green gate, he was inspected by the officials6/9 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.1677 of 2025and the ganja oil which was found in the two-wheeler was seized. This ganja oil,according to the prosecution, was that of the 1st accused, which was handed over tothe petitioner to hand it over to a person in a vessel inside the port. 12. The case of the petitioner is that the ganja oil was handed over to him as it isa medicine and he was not having any knowledge about the alleged contraband.This is a statement made by him in the statement recorded under Section 67 of NDPSAct. 13. The 1st accused was acquitted by the trial Court and the respondent agencyhas not preferred any appeal as against the acquittal of 1st accused. Whether thepetitioner had a conscious possession of contraband, is a matter to be decided in theappeal. 14. Considering the period of incarceration and since the petitioner is havingarguable points in this appeal and there is no likelihood of listing the criminal appealfor final hearing in the near future, this Court is inclined to suspend the sentenceimposed on the petitioner. 15. Accordingly, the substantive sentence of imprisonment alone is suspendedpending disposal of the criminal appeal and the petitioner is ordered to be enlargedon bail on executing a bond for Rs.25,000/- (Rupees Twenty Five Thousand only)with two sureties each for a like sum to the satisfaction of the 1st Additional Special7/9 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.1677 of 2025Court for NDPS Act, Madurai and on further condition that the petitioner shallappear before the respondent Police daily at 10.30 a.m. until further orders. sd/- 26/02/2025 / TRUE COPY / /02/2025 Sub-Assistant Registrar ( C.S. I / II / III / IV ) Madurai Bench of Madras High Court, Madurai - 625 023. OGYTO1 THE I ADDITIONAL SPECIAL JUDGE FOR NDPS ACT, MADURAI DISTRICT.2 THE SUPERINTENDENT,CENTRAL PRISON, PALAYAMKOTTAI.3 THE SUPERINTENDENT OF CUSTOMS,SPECIAL INTELLIGENCE AND INVESTIGATION BRANCH,CUSTOMS HOUSE, NEW HARBOUR ESTATE,TUTICORIN DISTRICT.4 THE SPECIAL PUBLIC PROSECUTOR,MADURAI BENCH OF MADRAS HIGH COURT, MADURAI. 8/9 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.1677 of 2025+1 CC to M/s.K.PRABHU, Advocate ( SR-2199[I] dated 27/02/2025 ) ORDER IN Crl.M.P.(MD)No.1677 of 2025in Crl.A.(MD)No.966 of 2024 Date :26/02/2025 SA/SAR. /27.02.2025/9P/6CMadurai Bench of Madras High Court is issuing certified copies in this format from 17/07/2023. 9/9