High Court · 2025

COMMON JUDGMENTSince these criminal appeals are arising out of the same crime, these appeals are taken up for hearing together and disposed of by way of this common judgment.The accused Nos.1 and 2 in C.C.No.185 of 2022 on the file of the I Additional Special Court for NDPS Act Cases, Madurai, have filed these Criminal Appeals before this Court challenging the conviction and sentence imposed against them in the impugned judgment and order dated 12.04.2023. The conviction and sentence is as follows:Conviction for the Offence under SectionSentence of Imprisonment8(c) r/w 20(b)(ii)(C) of the NDPS Act10 years R.I and to pay a fine of Rs.1,00,000/- each in default to undergo 12 months S.IBrief facts of the case2. According to the prosecution, on 03.09.2021 at about 14.00 hours, P.W.2/Sub-Inspector of Police, Usilampatti Town Police Station received secret information about the illegal transportation of Ganja by the accused persons. He recorded the said information under Ex.P5, in the 3/33 https://www.mhc.tn.gov.in/judis General Diary and informed the same to his superior and obtained the permission and went to the occurrence place along with his team and also the informant. The informant identified two persons and left the scene of occurrence. On seeing them, A2/Karnan escaped from the scene of occurrence. P.W.2 and his team rounded up A1/Pandiarajan and Ex.P1/Search Consent Letter was prepared for A1 alone and the same was read over and after explaining to him his signature was obtained in it. He took two samples each weighing 50 gms packed in kakki colour cover, stamped with SHO seal and identified as S1 and S2 and the same was marked as M.O.1 and M.O.2. Remaining Ganja weighing 21.900 kgs, was repacked in the same bag, stamped with SHO Seal and marked as M.O.3. P.W.2 prepared a seizure mahazar under Ex.P.4 and seized the Ganja. Thereafter, P.W.2 arrested A1 by serving Ex.P3/Arrest memo and brought him to the Station and registered a case in Crime No.397 of 2021 for the offence punishable under Section 8(c) r/w 20(b) (ii) (c) of NDPS Act, 1985, under Ex.P7/FIR. He also prepared Form 95 under Ex.P8 for sending the seized goods to the Court through the Inspector of Police/P.W.3. After receipt of the FIR and detailed report he made a 4/33 https://www.mhc.tn.gov.in/judis requisition letter under Ex.P9 to the Court to send the contraband for Chemical Analysis. After recording the statement of the Chemical Analyst and on verification and after completing the investigation, he laid the charge sheet as against both the accused. The learned trial Judge took the same on file in C.C.No.185 of 2022.3. After appearance of the accused, copies of records were furnished to them under Section 207 Cr.P.C. The learned Trial Judge, on perusal of records and on hearing both sides and after being satisfied that there existed a prima facie case against the accused/appellant, framed charges under Sections 8(c) r/w 20(b)(ii)(C) of the NDPS Act, 1985, and the same was read over and explained to them and on being questioned, the accused/appellants denied the charges and pleaded not guilty and stood trial.4.The prosecution, in order to prove its case, had examined 4 witnesses as P.W.1 to P.W.4 and exhibited 11 documents as Ex.P.1 to Ex.P.11 and marked three material objects as P.M.O.1 to P.M.O.3.5/33 https://www.mhc.tn.gov.in/judis

5.When the accused were examined under Section 313(1) (b) of Cr.P.C., with regard to incriminating aspects against them, they denied the evidence as false and further stated that a false case was foisted against them. The accused neither produced any documents nor examined any witness on their side. 6.The learned Trial Judge, considering the materials and circumstances found that accused in C.C.No.185 of 2022 were guilty and passed the conviction and sentence against the appellants as stated above. Aggrieved over the same appellants preferred this appeal.7. Submission of the learned counsel for the appellants The learned counsel for the appellants would submit that there was total non-compliance of mandate of Section 42 of the NDPS Act, 1985. According to the prosecution, P.W.2 received the secret information on 03.09.2021 at about 14.00 pm and he reduced in writing and informed the same to the Inspector of Police and the Deputy Superintendent of Police under Ex.P5. The Inspector of Police also received the same and signed. According to the learned counsel for the appellant, the oral evidence was 6/33 https://www.mhc.tn.gov.in/judis not enough and it should form part of either final report or the copies should have been furnished under Section 207 of Cr.P.C. Further, the original was not produced and in all probabilites, the same was concocted one. To substantiate the said contention, he further submitted that two persons were intercepted and one person had escaped from the scene of the occurrence. Therefore, there is a specific information about one person and allowing the other person to flee away from the occurrence place shows there is some suspicion relating to the receipt of the information and recovery of the contraband. According to the prosecution, the occurrence place is MGR Nagar “crpyk;gl;b fUf;fl;lhd;gl;b vk;.[p.Mh; efhpy; ghz;bauh[d; vd;gthpd; tPl;bw;F mUNf”. In the said information, there is no mentioning of the door number and also the evidence of P.W.1 is that the team went to occurrence place without informer and found two persons in M.G.R. Nagar near the house of the first accused with white color gunny bag. In the occurrence place, more than 500 houses are situated. In the said information, while there is no mentioning of any door number, in the said circumstances, how could they found the accused near the place of house of the first accused is not explained. It is 7/33 https://www.mhc.tn.gov.in/judis admitted case that the informer had not identified and travelled along with P.W.1 and P.W.2. In all circumstances, there is a suspicion regarding the alleged recovery. Further, no record was collected to prove ownership of the place of the occurrence. Therefore, he seeks for acquittal. 8. Submission of the learned Additional Public ProsecutorThe learned Additional Public Prosecutor submitted that Section 42 of the NDPS Act, 1985, was strictly complied with. He also submitted that Ex.P5 was produced and some contradiction in the evidence of P.W.1, P.W.2 and P.W.4 relating to the scene of occurrence is not a ground to disbelieve the evidence of recovery witnesses. Mere fact that the informer did not accompany is also not a ground to disbelieve the version of P.W.1 and P.W.2 to doubt the occurrence place and recovery of the contraband. Section 57 of the NDPS Act, 1985, and other mandatories were complied with and hence, the prosecution clearly proved the case beyond reasonable doubt.8/33 https://www.mhc.tn.gov.in/judis

9.This Court considered the rival submissions made by the learned counsel appearing for the appellant and the learned Additional Public Prosecutor appearing for the respondent and perused the materials available on record and the precedents relied upon by them.10.The question in this case is whether the prosecution has established the case beyond reasonable doubt against the appellants and the learned trial Judge's conviction and sentence imposed against the appellant can be sustained or not?11.Discussion on the compliance under Section 42 of the NDPS Act:The main contention raised by the learned counsel for the appellant is that there is total non-compliance of Section 42 of the NDPS Act, 1985. The Learned Trial Judge erroneously held that section 42 is not applicable to the present case as against the prosecution case that the searching officer received secret information and made entry in the case diary and reduced in writing and informed to the superior and proceeded to the 9/33 https://www.mhc.tn.gov.in/judis occurrence place and recovered the contraband and arrested the accused. The learned trial judge's finding that section 43 is applicable to the present case and there was no requirement for compliance under section 42 is perverse. 11.1.The learned trial Judge is not correct in holding that the Section 42 of the Act, is not applicable without considering the plea of the accused that the non-compliance of the mandatory procedure under Section 42 of the Act is erroneous as per the principle laid down by the Hon’ble Constitution Bench of Supreme Court in Karnail Singh Vs, State of Haryana reported in (2009) 3 SCC (Crl.) 887. 11.2.It is true that the learned trial Judge upon consideration of the judgment of the Hon’ble three Judge Bench of the Hon’ble Supreme Court in SK.Raju Alias Abdul Haque Alias Jagga Vs, State of West Bengal reported in (2018) 9 SCC 708 has held that the search was made in the public place and therefore, Section 43 of the Act alone is attracted and necessity to comply with the requirement under Section 42 will not arise. 10/33 https://www.mhc.tn.gov.in/judis

11.3.The learned counsel for the appellant would submit that the Hon’ble Supreme Court in the S.K.Raju case on facts has held that Section 43 of the Act alone is applicable. In the S.K.Raju case, even though information was received prior to the search and recovery of contraband from the accused, the information received was ‘when he was walking along the Picnic Garden Road in front of Falguni Club’, and according to the Hon’ble Supreme Court, it was not a building, conveyance or enclosed place. Further according to the Hon’ble Supreme Court, the said recovery was made in the public place, which was accessible to the public and fell within the ambit of the phrase of the public place in the explanation to Section 43 of the Act. Therefore, the Hon’ble Supreme Court has held that Section 42 of the Act had no application. Further, according to the learned counsel for the appellant, the Hon’ble Constitution Bench judgment ‘Karnail Singh’ was not placed. Therefore, the learned counsel for the appellant by relying the judgment of Hon'ble Supreme Court in Dr.Shah Faesal and Others Vs. Union of India and Another Court reported in 2020 4 SCC 1 would submit that the ratio 11/33 https://www.mhc.tn.gov.in/judis decidendi in S.K.Raju case is contrary to the dictum of larger bench and the same is not binding or otherwise the observation of the S.K.Raju case in para 12 of the judgment reported in 2018 9 SCC 708 is only a obiter dictum and therefore, he would submit that the non-compliance of Section 42 of the Act would vitiate the entire proceedings. Therefore, he seeks for acquittal. He also fairly placed the following judgments of the Hon’ble Supreme Court decided for and against him. i) State of Punjab Vs. Balbir Singh reported in (1994) 3 SCC 299ii) State of Pinjab Vs, Baldev Singh reported in (1999) 6 SCC 172iii) State of Haryana Vs. Jarnail Singh and Others reported in (2004) 5 SCC 188iv) Karnail Singh Vs, State of Haryana reported in (2009) 3 SCC (Cri) 887v) Sukhdev Singh Vs, State of Haryana reported in(2013) 2 SCC 212vi) State of Rajasthan Vs, Jagraj Singh @ Hansa reported in (2016) 11 SCC 687vii) Mukesh Singh Vs, State (Narcotic Branch of Delhi reported in (2020) 10 SCC 12012/33 https://www.mhc.tn.gov.in/judis viii) Boota Singh and Others Vs. State of Haryand reported in (2021) 19 SCC 606ix) Najmunisha Vs. State of Gujarat and Another reported in 2024(1) MWN (Cr.) 481 (SC) x) Darshan Singh Vs, State of Haryana reported in 2016 (14) SCC 358 11.4.Section 41(1) of the NDPS Act empowers the jurisdictional learned Judicial Magistrate to issue warrant for arrest of person or for the search of any building, conveyance or place in which the searching officers, who come under the purview of the NDPS Act, have reason to believe any narcotic drugs or psychotropic substance or controlled substance is illegally acquired or concealed. 11.5.Section 41(2) of the Act empowers the searching officer, who has received the information to search and arrest for the illegal possession, concealment, transportation as mentioned in the NDPS Act relating to the narcotic drugs or psychotropic substance or controlled substance. 13/33 https://www.mhc.tn.gov.in/judis

11.6.Section 42 of the Act following Section 41 of the Act mandates to follow certain procedure in the case of the arrest and seizure on the basis of the information. The object of the procedure enumerated under Section 42 of the Act either to arrest or search the person and recover the contraband is to safeguard the constitutional right envisaged in the constitution of India for the reason that the same can be made without obtaining the warrant from the Court. 11.7.As per the Section 42 of the Act, if the empowered officer has received the secret information about the illegal possession, transportation of narcotic drugs or psychotropic substance or controlled substance and the empowered officer is duty bound to reduce the said information in writing and shall send the same to his immediate superior within 72 hours. The Hon’ble Constitution Bench of the Supreme Court in the case of Karnail Singh v. State of Haryana, reported in (2009) 8 SCC 539 has considered the said requirement and laid the following guidelines:-14/33 https://www.mhc.tn.gov.in/judis

35.In conclusion, what is to be noticed is that Abdul Rashid [(2000) 2 SCC 513 : 2000 SCC (Cri) 496] did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham [(2001) 6 SCC 692 : 2001 SCC (Cri) 1217] hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:(a) The officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1).(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.15/33 https://www.mhc.tn.gov.in/judis (c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency.(d) While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, 16/33 https://www.mhc.tn.gov.in/judis then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001.”11.8. From the above, it is clear that when the officer received the secret information and proceeded to make search, recovery and arrest the accused along with contraband, it is the duty of the officer to comply the requirement of Section 42 of the Act as per the above guidelines. 11.9.From the reading of Section 43 of the Act, it is clear that when the officers while on patrol duty by chance make a recovery, they need not comply the requirement of Section 42 of the Act. Sections 42 and 43 of the Act are incorporated in the Act to meet out the different situations. Section 43 of the Act authorises the empowered officer mentioned in 17/33 https://www.mhc.tn.gov.in/judis Section 42 of the Act to search and seize the contraband in any public place namely, any public conveyance, hotel, shop, or other place intended for use by, or accessible to the public or in transit, without warrant in the case of their reason to believe that the narcotic drugs or psychotropic substance or controlled substance, had been possessed, transported, concealed etc., They had not acted on the basis of the earlier information. But, in the case of the Section 42, the searching officers acted on the basis of the receipt of the earlier information about the illegal possession, transportation, concealment of the contraband. In short, Section 43 of the Act, is to meet the emergent situation of chance recovery. Therefore, legislature distinguished the terms of the Sections 42 and 43 of the Act. The Hon’ble Constitution Bench also reiterated the said requirement of Section 42 in the case of Karnail Singh. Therefore, the finding of the learned trial Judge that Section 43 is applicable to the present case is not correct. But, this Court by exercising its power under Section 386 Cr.P.C., makes an effort to consider the plea of the learned counsel for the appellant whether there is mandatory requirement of the compliance of Section 42 of the Act, on the basis of the available evidence in this case. 18/33 https://www.mhc.tn.gov.in/judis

11.10. By applying the above principles, it is the duty of this court to test the finding of the learned trial judge whether the section 43 is applicable to the present case and the prosecution proved the compliance of the section 42 of NDPS Act. The Learned trial judge has observed that the recovery was made in front of the accused house and has held that section 43 is applicable which is not correct. The prosecution itself has come forward with the application of the section 42 of NDPS Act. The contraband was recovered from near the house of the accused No.1/Pandiarajan and the said concealed place was found by the searching officer on the disclosure of the accused No.1. Section 43 as discussed above by Hon'ble Supreme Court is applicable only when the officers by chance made the recovery while on patrol duty. In this case, PW 2 received the secret information and proceeded further on the basis of the said secret information and recovery also made from the concealed place on the disclosure of the accused No.1. Therefore the finding of the learned Trial judge that section 43 is applicable on the reasoning that the recovery was made in the public place situated near the house of the accused is 19/33 https://www.mhc.tn.gov.in/judis perverse and this court holds that section 42 is applicable to this case as rightly argued by the learned counsel of the appellants. Now the remaining question which has to be decided is whether the mandatory requirement of section 42 of the Act is complied with or not. 12. P.W.2 received the secret information on 03.09.2021 at 14.00 hours. He recorded the same and informed to the Inspector of Police and the Deputy Superintendent of Police and he deposed that he also made entry in the General Diary and also reduced the same in writing under Ex.P5 and he sent the same to P.W.3 and the same was submitted to P.W.4. P.W.4 acknowledged the information and granted permission to conduct raid. But, P.W.3 stated that he received the information through phone call. So, the learned counsel for the appellant would draw the attention of this Court to Ex.P5. Ex.P5 is a Xerox copy. P.W.4, specifically admitted that the said document was not sent to the Court, but, the same was kept in the file. The relevant evidence of P.W.3 is as follows:jftiy Kjypy; Jiz fz;fhzpg;ghsUf;F njhptpj;jjhfTk; gpwF jhd; vdf;F njhptpj;jjhfTk; mj;jhl;rp rhl;rpfs; kw;Wk; rhh;G Ma;thsh; thf;F%yj;jpy; 20/33 https://www.mhc.tn.gov.in/judis Fwpg;gpl;L nrhy;ypAs;shh;fs; vd;why; rhpay;y. Jiz fz;fhzpg;ghsh; kw;Wk; vd;dplk; jfty; nrhd;djhf jhd;; nrhy;ypAs;shh;fs;. XNu egh; xNu rkaj;jpy; 2 egh;fis njhlh;G nfhs;s ,ayhJ vd;why; rhpjhd;. jfty; cldb Nky; mjpfhhpf;F 72 kzp Neuj;jpy; njhptpf;f Ntz;Lk; vd;why; rhpjhd;. me;j jfty; ePjpj;Jiw eLth; ePjpkd;wj;jpw;F mDg;gtpy;iy vd;why; rhpjhd;. mit Nfhg;GfspNyNa ,Ue;Jtpl;ljhy; mDg;g ,aytpy;iy.12.1.P.W.4, who is the Deputy Superintendent of Police also admitted the same, which reads as follows:Kjy; jfty; mwpf;if kw;Wk; rhh;G Ma;thshpd; tprhuiz thf;F%yj;jpy; jftiy Kjypy; rhh;G Ma;thsh; fhty;Jiz fz;fhzpg;ghsUf;F njhptpj;jjhf jhd; cs;sJ vd;why; vdf;Fk; Ma;thsUf;Fk; njhptpj;jhh;. jfty; cldb Nky; mjpfhhpf;F 72 kzp Neuj;jpy; njhptpf;f Ntz;Lk; vd;why; rhpjhd;. jfty; ePjpj;Jiw eLth; ePjpkd;wj;jpw;F mDg;gg;gltpy;iy vd;why; rhpjhd;. tof;F Nfhg;Gf;fis ehd; vd;W tprhuizf;F vLj;Jf;nfhz;Nld; vd;why; 26.12.2021 k; Njjp vLj;Jf;nfhz;Nld;. Mtzq;fis ehd; ghh;itapl;Nld; vd;why; rhpjhd;. jftypd; mry; tof;F Nfhg;Gf;fspy; ,Ue;jpU;ejhy; mij ehd; Fw;wg;gj;jphpf;if jhf;fy; nra;Ak; NghJ ePjpkd;wj;jpy; jhf;fy; nra;jpUg;Ngd; vd;why; mit Vw;fdNt ePjpkd;wj;jpy; jhf;fy; nra;ag;gl;Ltpl;lJ. jftypd; mry; Mtzk; tof;FNfhg;Gfspy; ehd; ghh;itapLk; NghJ ,y;iy vd;why; rhpjhd;. jftyhdJ 21/33 https://www.mhc.tn.gov.in/judis vg;NghJ ePjpkd;wj;jpy; jhf;fy; nra;ag;gl;lJ vd;w tptuk; vdf;F njhpAkh vd;why; Qhgfk; ,y;iy. jfty; 17 khjq;fs; fopj;J ,e;j tof;fpw;F tYTl;Ltjw;fhf gpd;dpl;L jahhpf;fg;gl;L ePjpkd;wj;jpy; jhf;fy; nra;ag;gl;Ls;sJ vd;why; rhpjhd;.12.2.P.W.2 also admitted the same, which reads as follows:..Kjy; tprhuizapy; jftiy jdpj;jhspy; gjpT nra;jjhfTk; fhty; Ma;thsh; mjpy Nkw;Fwpg;G nra;jjhfTk; nrhd;d tptuq;fis Ma;thsh; tprhuizapy; nrhy;ytpy;iy vd;why; rhpjhd;...jfty; jtph;j;J jftiy jdpahf vOj;J %ykhf gjpT nra;jjhfNth jftypd; efy; kw;Wk; mry; fhty; Ma;thsUf;F mDg;gpajhfNth ve;j xU Mtzj;jpYk; Fwpg;Gfs; ,y;iy vd;why; rhpjhd;.12.3. In view of the above circumstances, the learned counsel submitted that there was no compliance of Section 42 of the NDPS Act, 1985, is incontrovertible well merited one. To overcome this, they produced the document under Ex.P5, which also contained manipulation as admitted by him in his cross examination and produced before the Court. In the Xerox copy of the said document there is no explanation as 22/33 https://www.mhc.tn.gov.in/judis to the original document prepared by P.W.2. P.W3 says that the same was kept in the CD file which conflicts with the evidence of P.W.4 that no such document was available in the CD file. Apart from that, admission of all the officers are that the said document was not sent to the Court. The same does not form part of either final report or the copies under Section 207 of Cr.P.C. This Court also perused the material and immaterial records and finds that there is no compliance of Section 42 of the NDPS Act, 1985. The learned trial Judge has held that Section 42 of the NDPS Act, 1985 is not applicable to the present case. The said finding of the learned trial Judge is not correct as referred in the above case. The case of the prosecution is that they complied Section 42 of the NDPS Act, 1985 on receipt of information. The learned trial Judge's finding that Section 42 of the NDPS Act, 1985 is not applicable is erroneous one. Hence, in all aspects, there was no compliance of Section 42 of the NDPS Act, 1985, which would vitiate the entire trial. Further, the compliance under Section 42 of the NDPS Act, 1985 is the base of the case and when the prosecution failed to establish the base of the case, the entire edifice will collapse. 23/33 https://www.mhc.tn.gov.in/judis

12.5.The learned counsel for the appellants would submit that Ex.P5 was produced only on 16.02.2023, ie., after 17 months from the date of receipt of the information. Therefore, it casts a serious doubt over the compliance under Section 42 of the NDPS Act. To Consider the said submission, this Court perused the final report filed before the Court below and also the copies served upon the appellant/accused under Section 207 of Cr.P.C. Neither in the final report nor in the copies served under Section 207 of Cr.P.C., the copy of Ex.P5 is not available and it was produced only at the time of the chief examination. P.W.3 admitted that the copies of Ex.P.5 were not sent to the jurisdictional Court. Even the said document does not contain any seal. All the documents produced by the prosecution contained seal of the Court and signature of the learned Judicial Officers. But, this document does not contain any signature. Even in the document it is not referred that there was an entry in the General Diary relating to the recording of the said information. It is the evidence of P.W.2, there was no endorsement of the learned Judicial Magistrate. The following endorsement alone is found:“SI Sekar take necessary action and report as per law”24/33 https://www.mhc.tn.gov.in/judis

12.6. But the evidence of P.W.3, who is said to have made the endorsement is as follows:mg;NghJ jftiy vt;thW vdf;F jfty; njhptpj;jhh; vd;why; jfty; gjpT nra;Jtpl;L jq;fs; ghh;itf;F itj;Js;Nsd; vd;W $wp vdf;F miyNgrp *yk; njhptpj;jhh;. ehd; fhty; epiyaj;jpw;F jpUk;gTk; vj;jid kzpf;F te;Njd; vd;why; 16.30 kzpf;F te;Njd;. mg;NghJ tof;F rk;ge;jkhd midj;J eltbf;iffSk; Kbtile;jJ vd;why; rhpjhd;. 12.7. From the above evidence of P.W.2 that after the endorsement made by P.W.3, P.W.1 and P.W.2 went to the occurrence place to seize the contraband in compliance with Section 42 is not correct. It is the specific case of P.W.2 that after obtaining the permission, he proceeded further. But the contra evidence is that P.W.3 was not available. Therefore, as rightly pointed out by the learned counsel for the appellants, Ex.P5 is concocted one in order to buttress the case of prosecution. 25/33 https://www.mhc.tn.gov.in/judis

12.8. It is the specific case of P.W.2 that he recorded information and submitted to P.W.3 and obtained the permission and thereafter proceeded further. Therefore, this Court finds that the prosecution has not complied the mandatory requirement of Section 42 of the NDPS Act. If P.W.2 reduced in writing and submitted to the higher official the document would have formed part of the final report or the copies would have been served under Section 207 of Cr.P.C.12.9.Further no explanation was furnished by P.W.2 and P.W.3 for the non-production of the said document for 17 months, which creates doubt over its existence and the case of P.W.2 that it was prepared on 03.09.2021. Therefore, this Court holds that there is total non-compliance of Section 42 of the NDPS Act and hence, the appellant is entitled to acquittal.13.Place of the occurrence:According to the prosecution, the information was received by P.W.2 and recorded by P.W.2 and the informant informed through the phone 26/33 https://www.mhc.tn.gov.in/judis about the illegal possession of the contraband by A1/Pandiayarajan and other person in Usilampatti, Karukkattanpatti Road, M.G.R.Nagar, near the house of Pandiyarajan. He also stated that he has not stated the door number of the house of Pandiyarajan. He informed that he would identify the accused. As per the evidence of P.W.2 and P.W.3, the door number of Pandiyarajan is not available in the information and also they did not have the knowledge about the door number of the house of Pandiyarajan. There was no investigation relating to the door number of the house of Pandiyarajan. Admittedly, more than 500 houses are located in M.G.R. Nagar. P.W.2's specific case is that informant has not identified the accused. He has not accompanied P.W.2. Therefore, as to how P.W.2 ascertained the identity of Pandiyarajan and his house is lacking. Therefore, there is a serious doubt over the recovery of the contraband. There is a material contradiction between the evidence of P.W.2 and P.W.3 relating to the place of occurrence. According to P.W.2, he came to know about the house of Pandiarajan upon his disclosure ie., vjphpapd; tPL vd;W vt;thW njhpe;J nfhz;Nlhk; vd;why; mth; nrhy;yp jhd; njhpAk;. tPl;bd; chpikahsh; Fwpj;J gl;lh gj;jpuk; Fwpj;J vJTk; 27/33 https://www.mhc.tn.gov.in/judis ifg;gw;wpNdhkh vd;why; ,y;iy. P.W.3 also deposed that he has not recovered any material to prove the ownership of the house of Pandiarajan. Therefore, the recovered place has not been proved by any sketch and observation mahazar and any other evidence to show that the recovery was made in front of or near the place of the appellant's house. 13.1. There is no evidence on record to show that either P.W.1 or P.W.2 or other persons accompanying the team took any steps to chase the absconded accused. Without any evidence to prove their efforts to chase the absconded accused, this Court is unable to accept the presence of both accused in the scene of occurrence. Therefore, the presence of the accused in the scene of the occurrence along with the contraband is not proved beyond reasonable doubt. The recovery mahazar under Ex.P4 states as follows: 16.00 kzpf;F crpyk;gl;b fUf;fl;lhd;gl;b NuhL MGR efhpy; cs;s vjphp gz;bauh[d; tPl;bd; mUfpy; itj;J.13.2. There was no record to show whether Pandiarajan's house is situated in the locality and no sketch was prepared to show that the recovered place is situated near Pandiarajan house. Therefore, the 28/33 https://www.mhc.tn.gov.in/judis preparation of the Athachi is not proved. 13.3. That apart, it is the specific case of the prosecution that P.W.1 and P.W.2 went to the scene of the occurrence without informer and they have not produced any records to show there were no residences in that area. In the said circumstances, without any knowledge about the door number or any address of the first accused, there is a serious doubt in the prosecution case about the identification of the occurrence place. This Court is unable to believe the recovery from the alleged place of occurrence. 14. Other Infirmities in the Prosecution Case:14.1.When they reached the place of occurrence, on seeing them both the accused tried to escape from the scene of the occurrence. They caught Pandiarajan/A1, A2 had escaped from the scene of the occurrence. Further, the case of the police officers that one of the accused fled away from the scene of the occurrence is unbelievable one. Looking from another angle, they allowed the accused to escape from the scene of 29/33 https://www.mhc.tn.gov.in/judis the occurrence and therefore, they are liable to be prosecuted under Section 59 of the NDPS Act, 1985. 14.2. Further it is admitted that the report under Section 57 of the NDPS Act, 1985 also was not sent within time. It is admitted by the investigating officer/P.W.4, in his cross examination. The report did not contain the acknowledgment of the other officers. According to P.W.2, the report was received by P.W.3, but, there was no signature. In Ex.P6, there is no signature of the Inspector of Police. The Hon'ble Supreme Court has held that the non compliance of Section 57 of the NDPS Act, 1985, in isolation is not a circumstance to disbelieve the evidence of other circumstances. In this case as observed above, the said non compliance is affecting the case of recovery.15. Discussion on the involvement of the Accused No.2/Appellant in Crl.A.(MD) No. 1074 of 2023: 15.1. So far as the appellant No.2 is concerned, according to the prosecution, he escaped from the scene of occurrence. Nothing is 30/33 https://www.mhc.tn.gov.in/judis available on record to show to believe the presence of A2 in the scene of occurrence. Even evidence was not recorded that the absconding accused is A2. P.W.1 and P.W.2 had not even identified the accused before the Court. In view of the fact that there was no recovery from A2 and there was no proof of his company along with A1 in near the place of Pandiarajan house, this Court is unable to convict A2 also. 16.In the result, this Criminal Appeal stands allowed in the following terms:16.1. The conviction under Section 8(c) r/w 20(b)(ii)(C) of NDPS Act passed by the learned I Additional Special Judge, Special Court for NDPS Act cases, Madurai, dated 12.04.2023, in C.C.No.185 of 2022, is hereby set aside.16.2. The appellants are acquitted from all the charges in C.C.No.185 of 2022, dated 12.04.2023 passed by the learned I Additional Special Judge, Special Court for NDPS Act cases, Madurai.31/33 https://www.mhc.tn.gov.in/judis

16.3.Fine amount paid by the appellants shall be refunded to the appellants forthwith. 16.4.Bail bond executed by the appellants shall stand terminated. Consequently, connected miscellaneous petitions are closed. 26.08.2025NCC:Yes/NoIndex:Yes/NoInternet:Yes/NosbnNote: Issue order copy on 28.08.2025.To1.The I Additional Special Court for NDPS Act cases, Madurai.2.The Inspector of Police, Usilampatti Town Police Station, Madurai District.3.The Superintendent of Prison, Central Prison, Madurai.4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.5.The Section Officer, Criminal Section (Records) Madurai Bench of Madras High Court, Madurai.32/33 https://www.mhc.tn.gov.in/judis K.K.RAMAKRISHNAN.J,sbn Crl.A.(MD).Nos.388 & 1074 of 2023andCrl.M.P.(MD).Nos.7404 and 17174 of 2023 and 6373 of 202426.08.202533/33