High Court · 2025

Crl.M.P.(MD)No.3009 of 2025BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27.03.2025CORAMTHE HONOURABLE MR JUSTICE B.PUGALENDHICrl.M.P.(MD)No.3009 of 2025in Crl.A.(MD)No.291 of 2025P.Thayenthiran,S/o.Palanivelu,D.No.61, Block No.141,Poovalur Post, Pattukottai Taluk,Thanjavur District. Petitioner(s) versusState of Tamil Nadu rep. byInspector of Police,NIB CID,Theni District. Respondent(s) For Petitioner(s): Mr.NA.ManimaranAdvocateFor Respondent(s): Mr.T.Senthil Kumar,Additional Public ProsecutorORDERThe petitioner is the 3rd accused in C.C.No.402 of 2018 on the file of the IIAdditional Special Court for NDPS Act cases, Madurai. He was tried along with twoother accused for the offence under Section 8(c) r/w. 20(b)(ii)(C) of NDPS Act. After1/8 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.3009 of 2025the trial, the trial Court, by its Judgment dated 30.05.2024, found the petitioner guiltyfor the said offence and convicted and sentenced him to undergo 10 years rigorousimprisonment and to pay a fine of Rs.1,00,000/-, with the default sentence of 12months simple imprisonment. Challenging the Judgment of conviction and sentence,the petitioner has preferred an appeal in Crl.A.(MD)No.291 of 2025 and the same wasadmitted by this Court on 07.03.2025. The petitioner has also moved this petition tosuspend the sentence imposed on him by the trial Court. 2. The learned counsel appearing for the petitioner submits that thepetitioner/A3 was a driver of the vehicle and the contraband was recovered from theaccused 1 and 2. Therefore, there was no recovery from the petitioner/A3. Hefurther submits that there is a violation of mandatory provisions under Section 42(i)of NDPS Act. According to him, the information, which was received by the Officer,who seized the contraband, has not been recorded as mandated under Section 42(i) ofNDPS Act and it has been forwarded only after a period of six days. Since thepetitioner is in jail for more than nine months, he seeks to suspend the sentenceimposed by the trial Court. 3. The learned Additional Public Prosecutor submits that the petitioner was adriver of a Mahindra Xylo D2 Silver Colour Car, bearing Reg.No.TN 22 CL 0545. Therespondent Police, on information, has recovered 210 kgs. of ganja, concealed in2/8 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.3009 of 2025seven bags. Apart from that, the respondent Police has also recovered two numberplates bearing registration number of Andhra Pradesh from the petitioner. Thosenumber plates were marked as M.O.Nos.24 and 25. 4. The learned Additional Public Prosecutor further submits that all the accusedwent to Andhra Pradesh and procured ganja from Andhra Pradesh and had taken theganja to the house of A1. On their way, based on the information, the respondentPolice recovered the contraband. Further, the vehicle has not been claimed by thepetitioner as well as by any other accused. The learned Additional Public Prosecutorhas also relied on a Judgment of the Hon'ble Supreme Court in Dehal Singh vs. Stateof Himachal Pradesh, reported in (2010) 9 SCC 85, wherein, the Hon'ble SupremeCourt has held as under: “24. Both the appellants have been found travelling in the carfrom which charas was recovered and, therefore, they were inpossession thereof. They were knowing each other. They were nottravelling in a public transport vehicle. Distinction has to be madebetween the accused travelling by public transport vehicle and privatevehicle. It needs no emphasis that to bring the offence within themischief of Section 20 of the Act possession has to be consciouspossession. Section 35 of the Act recognises that once possession is3/8 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.3009 of 2025established the court can presume that the accused had a culpablemental state, meaning thereby conscious possession. Further, theperson who claims that he was not in conscious possession has toestablish it. Presumption of conscious possession is further availableunder Section 54 of the Act, which provides that the accused may bepresumed to have committed the offence unless he accounts forsatisfactorily the possession of contraband.” 5. With regard to the ground taken by the learned counsel appearing for thepetitioner that there is a violation of mandatory provision under Section 42(i) ofNDPS Act, the learned Additional Public Prosecutor submits that the said point hasalready been dealt with by the trial Court in paragraph 20 of the Judgment as under:“ 20. The next aspect that is to be considered here is that thecontraband was transported in the vehicle in which the 2nd and 3rdaccused were coming and it is Mahindra Xylo Car bearingRegn.No.TN22-CL-0545. So the entire contraband has been seized fromA2 and A3 which they were on transit, transporting the contraband inthe said vehicle. Therefore as per Section 43 of the NDPS Act, when thecontraband is seized while on transit, then the authorized officer isempowered to arrest and seize them in view of the powers conferred4/8 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.3009 of 2025U/s.43 of the NDPS Act. In such circumstances also, this court holdsthe provisions of Section 42 does not have any application and it is onlySection 43 that will be applicable. On this aspect this Court is alsoinclined to refer to the following judgments.(a) The judgment in Narayanaswamy Ravishankar vs. AssistantDirector, Directorate of Revenue Intelligence reported in (2002) 8 SCC 7wherein a three judge Bench of the Supreme Court had authoritativelyheld at Paragraph No.5 of the said judgment as “5. In the instant case,according to the documents on record and the evidence of thewitnesses, the search and seizure took place at the airport which is apublic place. This being so, it is the provisions of Section 43 of theNDPS Act which would be applicable. Further, as Section 42 of theNDPS Act was not applicable in the present case, the seizure havingbeen effected in a public place, the question of non-compliance, if any,of the provisions of Section 42 of the NDPS Act is wholly irrelevant...”(b) The Constitution Bench of the Hon'ble Supreme Court in Stateof Punjab vs. Baldev Singh reported in (1999) 6 SCC 172, has held in thefollowing words:- “10. ..... The material difference between theprovisions of Section 43 and Section 42 is that whereas Section 425/8 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.3009 of 2025requires recording of reasons for belief and for taking down ofinformation received in writing with regard to the commission of anoffence before conducting search and seizure, Section 43 does notcontain any such provision and as such while acting under Section 43 ofthe Act, the empowered officer has the power of seizure of the articleetc. and arrest of a person who is found to be in possession of anynarcotic drug or psychotropic substance in a public place where suchpossession appears to him to be unlawful.”(c) In SK Raju @ Abdul Haque @ Jagga Vs. State of West Bengalrendered in the Criminal Appeal No.459 of 2017 reported in 2018 (4)Crimes 147 (SC) it has been held that “In the instant case, according tothe documents on record and the evidence of the witnesses, the searchand seizure took place at the airport which is a public place. This beingso, it is the provisions of Section 43 of the NDPS Act which would beapplicable. Further, as Section 42 of the NDPS Act was not applicablein the present case, the seizure having been effected in a public place,the question of non-compliance, if any, of the provisions of Section 42 ofthe NDPS Act is wholly irrelevant.” 6. According to the learned Additional Public Prosecutor, the recovery was6/8 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.3009 of 2025taken place in a public place and therefore, Section 43 of the NDPS Act alone wouldbe applicable and Section 42 of the NDPS would not be applicable. According to him,if any information was recorded, it was forwarded to the higher officials immediatelyand thereafter, it cannot be a ground for consideration. 7. Considering the quantity of contraband and the grounds raised by thelearned Additional Public Prosecutor, this Court is not inclined to suspend thesentence imposed by the trial Court on petitioner. Accordingly, this CriminalMiscellaneous Petition is dismissed. sd/- 27/03/2025 / TRUE COPY / /04/2025 Sub-Assistant Registrar ( C.S. I / II / III / IV ) Madurai Bench of Madras High Court, Madurai - 625 023. OGYTO1 THE II ADDIITONAL SPECIAL JUDGE FOR EC AND NDPS ACT CASES,MADURAI.2 THE INSPECTOR OF POLICE,NIB CID,THENI DISTRICT. 3 THE SUPERINTENDENT,CENTRAL PRISON,MADURAI.7/8 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.3009 of 20254 THE ADDITIONAL PUBLIC PROSECUTOR,MADURAI BENCH OF MADRAS HIGH COURT, MADURAI. ORDER IN Crl.M.P.(MD)No.3009 of 2025in Crl.A.(MD)No.291 of 2025 Date :27/03/2025 SA/SAR. /07.04.2025/8P/5CMadurai Bench of Madras High Court is issuing certified copies in this format from 17/07/2023. 8/8