High Court · 2025

JUDGMENTThe appellants/A1 & A2 in C.C.No.138 of 2019, on the file of learned Additional District and Sessions Judge and Special Judge for EC and NDPS Act Cases, Pudukottai, have filed this appeal, challenging the conviction and sentence imposed against them on 21.09.2021, wherein, they were convicted for the offence under Sections 307 of IPC, 8(c) r/w 20(b)(ii)(C) and 25 of the NDPS Act and for the alleged transportation of 170 kg of ganja without having any valid licence. 2. The brief facts of the case as follows:2.1. P.W.1 was the Special Officer appointed by the Commissioner, Madurai City, to nab one Kalimuthu @ Vellaikali who was absconding in Crime No.419 of 2019 on the file of the Keeraidurai Police Station, Madurai City. P.W.1 received a secret information about the movement of Kalimuthu @ Vellaikali through his informer and he and his team assembled near Samayapuram toll gate to nab the said Kalimuthu @ Vellaikali along with the first appellant. At that time, he received further information about the arrival of the Kalimuthu @ Vellaikali and the first appellant near Thirumanthdurai toll gate area in Perambalur District. The said information was received by him on 13.07.2019 at 10.00 a.m. Therefore, they reached Thirumanthdurai toll gate at 12.00 pm and watched for the arrival of Honda Page No.2/16 https://www.mhc.tn.gov.in/judis City red colour car bearing Reg.No.TN-06-C-0033. The said car reached the Thirumanthdurai toll gate and they intercepted the said car. At that time, the first appellant attempted to murder him by hitting over the car and thereafter, P.W.1 used his service pistol and shot in the air. Thereafter, the first appellant broke the glasses of the car and tried to escape from the scene of occurrence and he was nabbed by the team of P.W.1. Thereafter, he disclosed about the purchase of ganja and kepeeing the same in the car. Hence, they recovered the car along with ganja. Thereafter, he arrested the accused and entrusted the custody of the accused with Mangalamedu Police Station. The Mangalamedu Police officers registered a case in Crime No.203 of 2019 for the offence under Sections 307 of IPC, 8(c) r/w 20(b)(ii)(C) and 25 of the NDPS Act. They conducted investigation and filed final report before the learned Additional District and Sessions Judge and Special Judge for EC and NDPS Act Cases, Pudukottai, and the same was taken on file in C.C.No.138 of 2019. 2.2. The learned trial Judge issued summons to the accused and on their appearance, served the copies under Section 207 Cr.P.C. and framed the necessary charges and questioned the accused. The accused pleaded not guilty and stood for trial.Page No.3/16 https://www.mhc.tn.gov.in/judis

2.3. The prosecution, to prove the case examined P.W.1 to P.W.16 and exhibited 19 documents as Ex.P.1 to Ex.P19 and produced 2 material objects as M.O.1 & M.O.2. The learned trial Judge questioned the accused under Section 313 of Cr.P.C., proceedings by putting the incriminating evidence available from the evidence of prosecution witnesses and documents. The accused denied the same as false stating that false case was registered against them. Thereafter, the case was posted for examinationof the witnesses on the side of the appellants. On the side of the defence, no one was examined as witness and no document was marked. 2.4. The learned trial Judge after considering the oral and documentary evidence, convicted the appellants for the offence under Sections 307 of IPC, 8(c) r/w 20(b)(ii)(C) and 25 of the NDPS Act and sentenced them to undergo 7 years Rigorous Imprisonment each and to pay a fine of Rs.5,000/- each in default to undergo 3 months Simple Imprisonment for the offence under Section 307of IPC and sentenced them to undergo 10 years Rigorous Imprisonment each and to pay a fine of Rs.1,00,000/- (Rupees One Lake only) each in default, to undergo, 6 months Simple Imprisonment each for the offence under Section 8(c) r/w 20(b)(ii)(C) of the NDPS Act and sentenced them to undergo 10 years Rigorous Imprisonment each and to pay a fine of Rs.1,00,000/- (Rupees One Lake only) each in default, to undergo, 6 months Simple Imprisonment each for the offence under Section 25 of the NDPS Act.Page No.4/16 https://www.mhc.tn.gov.in/judis

3. Challenging the said conviction and sentence imposed by the learned trial Judge, present appeal has been filed. 4. Thiru.N.Balasubramanian, the learned counsel for the first appellant/A1 and Thiru.K.Pragadesh Kumar, the learned counsel for the second appellant/A2 jointly made the following submissions:-4.1. It is a classic case where the police officers foisted a false case without collecting material evidence and also material documents to prove the occurrence. According to the prosecution, this is a horrible incident, shocking the society at large that happened at the toll gate. In the said circumstances, the best evidence is CCTV Camera at the toll gate. The same was not produced and hence, it crates suspicion over the alleged occurrence that took place as projected by the police officers. The said suspicion further gets support from hostility of all witnesses of the toll gate. P.W.2 to P.W.4 and P.W.6 to P.W.10 were examined to prove the occurrence. All the independent witnesses turned hostile. They not only deposed about the absence of the accused but also deposed about the absence of P.W.1. In view of that, the said evidence was not clarified by the prosecution. Therefore, the evidence of P.W.1 is not believable. In the said circumstance, they seek acquittal.Page No.5/16 https://www.mhc.tn.gov.in/judis

4.2. To prove the presence of P.W.1, who is a Special Team Member, no record was produced that he was appointed as Special Team member and he was allowed to accompany the other witness P.W.5. More particularly, P.W.1 in his cross-examination, admitted indirectly that in order to wreak vengeance, a false case was registered. The said answer was neither clarified nor cross-examined as per law. So, admission of P.W.1 proves the motive for the case, which was registered against the accused with a false story. The evidence of P.W.1 itself is not corroborated by the other team members and P.W.5. 4.3. The material fact is concerned, according to the prosecution, the first appellant broke the right side front door glass of the car and tried to escape from the scene of occurrence. In the said circumstances, no pieces of broken glass were found either in the mahazar and in the sketch or inside the car. Therefore, the story put forth by P.W.1 is false one and hence, they seek acquittal for the appellants. 4.4. It is the case of the prosecution that the first accused broke the glass with his hands. If it is true, there should have been injuries on the hands of the first appellant and pieces of broken glass should have been found littered over the scene of occurrence. But, it was not found in the mahazar and also in the sketch and in other materials. Page No.6/16 https://www.mhc.tn.gov.in/judis

4.5. It is the case of the prosecution that CCTV evidence is available and that the said occurrence would have got recorded in CCTV camera. For the reason known to them, they have not produced the said document. Therefore, the entire prosecution case is bristled with infirmity and the improbable events. Therefore, they prayed to allow this appeal by setting aside the conviction and sentence passed by the learned trial Judge. 5.1. The learned Additional Public Prosecutor would submit that the non-seizure of CCTV camera and the independent witnesses turning hostile are not grounds to disbelieve the evidence of P.W.1 and P.W.5. The Hon'ble Supreme Court in the case of Mukesh Singh Vs. State (Narcotic Branch of Delhi) reported in (2020) 10 SCC 120 reiterated the principle that the non-examination of the independent witnesses is not a circumstance to disbelieve the evidence of P.W.1 and P.W.5 when their evidence is cogent and trustworthy. Therefore, the conviction and sentence passed on the basis of the evidence of P.W.1 and P.W.5 is in accordance with law. 5.2. The learned Additional Public Prosecutor would further submit that the incident took place in the toll gate, where there would have been tense situation. Hence, P.W.1 with his pistol shot in the air as a warning shot. Thereafter, he and his team nabbed the accused, who has previous bad Page No.7/16 https://www.mhc.tn.gov.in/judis antecedents. Hence, the entire evidence of P.W.1 and P.W.5 is cogent and trustworthy. The socalled admission made by P.W.1 is not an admission. It is a typographical error committed by the Typist and hence, the conviction and sentence passed by the learned trial Judge is in accordance with law. Hence, he prayed to confirm the conviction and sentence passed by the learned trial Judge by dismissing the appeal.5.3. The investigation lapse is not a ground to acquit the appellants when the evidence of P.W.1 and P.W.5 are cogent and trustworthy. The lapse on the part of the Investigating Agency in collecting the materials and not noting down the presence of broken glass pieces is not a ground to disbelieve the evidence of P.W.1 and P.W.5. Since the accused are notorious persons, the independent witness will not come forward to depose against them. Therefore, he seeks to confirm the conviction and sentence passed by the learned trial Judge on the basis of the evidence of P.W.1 and P.W.5.6. This Court considered the rival submissions and perused the records and also the precedents relied upon by them. 7. The judgment of the Hon'ble Constitution Bench in the case of Mukesh Singh Vs. State (Narcotic Branch of Delhi) reported in (2020) 10 Page No.8/16 https://www.mhc.tn.gov.in/judis SCC 120 reiterated the principle that in the grave nature of the offence, the greatest responsibility upon the prosecution is to prove the foundational facts.7.1. The prosecution must prove the case beyond reasonable doubt. Suspicion, however strong, is not a ground to convict the accused and the same is fortified by the following decisions of the Hon'ble Supreme Court in Digamber Vaishnav v. State of Chhattisgarh reported in (2019) 4 SCC 522 and Sheila Sebastian v. R. Jawaharaj reported in (2018) 7 SCC 581. (2019) 4 SCC 522(2018) 7 SCC 581“14. There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof. The onus of the prosecution cannot be discharged by referring to very strong suspicion and existence of highly suspicious factors to inculpate the accused........”“28. Law is well settled with regard to the fact that however strong the suspicion may be, it cannot take the place of proof. Strong suspicion, coincidence, grave doubt cannot take the place of proof. Always a duty is cast upon the courts to ensure that suspicion does not take place of the legal proof.”Page No.9/16 https://www.mhc.tn.gov.in/judis

7.2. The Investigating Agency in all fairness should have conducted the investigation in a fair manner by collecting all the material particulars and the same is fortified by the following decision of the Hon'ble Supreme Court in (2018) 18 SCC 654.7.2.1. Suresh v. State of Haryana reported in (2018) 18 SCC 654 “56..... Although courts cannot give benefit of doubt to the accused for small errors committed during the investigation, we cannot however, turn a blind eye towards the investigative deficiencies which goes to the root of the matter.” 7.3. In this case, this incident shocked the judicial conscience. But, the Investigating Agency, has committed many lapses without collecting valuable evidence. The prosecution also was not properly conducted. 8.1. It is the specific case that one Kali @ Vellaikali was accused in Crime No.412 of 2019 on the file of the Keeraithurai Police Station and he is absconding. Therefore, P.W.1 was appointed as Special Officer to nab him. He received the secret information about his movement with the first appellant in Thirumanthdurai and Perambalur Area. Therefore, they initially reached Samayapuram toll gate. Thereafter, they received information about Page No.10/16 https://www.mhc.tn.gov.in/judis their movement that they were likely to cross the Thirumanthdurai toll gate at Perambalur. Hence, they proceeded to Thirumanthdurai toll gate at 12.00 p.m on 13.07.2019 and watched over the movement. At around 12.30 p.m, red colour Honda City car bearing Reg.No.TN-06-C-0033 came in 8th lane of the toll gate. On seeing the same, P.W.1, P.W.5 and other members surrounded the car and attempted to stop the car. At that time, the first appellant without stopping the car with an intention to murder them took the car backward and moved (mth; fhiu Kd;Dk; gpd;Dk; efh;j;jp jdpg;gilapdh; fhiu ,oj;J js;s Kw;gl;lhh;). Therefore, to save his life, and to scare the accused P.W.1 used his service pistol and shot in the air. Thereafter, the first appellant broke the right side door glass of the car and attempted to escape from the scene of occurrence. At that time, they were nabbed by P.W.1 and his team. Thereafter, they disclosed about the presence of 170 kg of contraband in the car boot. To prove the said incident, the persons from the toll gate namely, P.W.2 to P.W.4, P.W.6 and P.W.7 were examined and they clearly deposed that they had never seen the accused and P.W.1. They are the competent witnesses to speak about the occurrence. More particularly, P.W.7 is the Security Officer of the said Thirumanthdurai toll gate. He specifically deposed as follows:- ehd; nguk;gYhh; khtl;lk; Fd;dk; tl;lk; jpUkhe;jpiu mz;zh efhpy; FbapUf;fpNwd;. ehd; flYhh; nyl;Rkp nrf;a+hpl;b rh;tP]; %yk; jpUkhe;jpiu Rq;f rhtbapy; 8 tUlkhf nrf;fp Page No.11/16 https://www.mhc.tn.gov.in/judis a+hpl;bahf Ntiy nra;fpNwd;. M[h; vjphpfis vdf;F njhpahJ. mth;fis ehd; ghh;j;jNj ,y;iy. Ehd; ,t;tof;F rk;gtj;ij ghh;f;ftpy;iy. Vjw;fhf vd;id rhl;rpahf Ngl;Ls;shh;fs; vd;W njhpahJ. Rkhh; 2tUlj;jpw;F Kd;G jpUr;rp – nrd;id nry;Yk; 6tJ ek;gh; g+j;jpy; nrf;fpa+hpl;bahf epd;Wf;nfhz;bUe;Njd;. Nrd;id yadpy; lk; vd;w rj;jk; Nfl;lJ. mJ vd;d rj;jk; vd;W njhpahJ. ehd; Nfl;Lj; njhpe;Jnfhs;stpy;iy. mg;NghJ kJiu khtl;l jdpg;gil NghyPrhh; mq;F ,Ue;jhh;fsh vd;W njhpahJ. mq;F vd;d ele;jJ vd;W njhpahJ. ,e;j tof;F rk;ge;jkhf kq;fsNkL bv];gp vd;id tprhhpf;ftpy;iy. 8.2. From the evidence, there is a doubt over the prosecution case. The evidence of P.W.1 is that he reached the Samayapuram toll gate on that day and he was appointed as a Special Officer to nab the accused. But, no document was produced to prove that he was appointed as a Special Officer in this regard. Apart from that, no record was produced to show that he has reached the said place. Further, he specifically admitted as follows:- ehd; brhy;tJ nghy rk;gtk; ,y;iy vd;Wk; vjphpaplkpUe;J fQ;rh vJt[k; ifg;gw;wtpy;iy vd;Wk; vjphp Kdparhkp fPiuj;Jiu tHf;fpy; $hkPdpy; brd;wgoahy; mtiu kPz;Lk; rpiwapy; milf;f ntz;Lk; vd;gjw;fhf ,t;tHf;F bgha;ahf n$hof;fg;gl;L g[fhh; bfhLf;fg;gl;lJ vd;why; rhpjhd;. 8.3. The said admission of P.W.1 was not clarified through reexamination. Therefore, the same is taken as an admission. They nabbed the accused with an ulterior motive. According to them, the accused broke.. Page No.12/16 https://www.mhc.tn.gov.in/judis the right side glass of the door of the car and tried to escape from the car. In those circumstances, three material facts are significant that is, if the glass was broken with the hands, then there is a possibility of injuries on the hands of the accused and damage caused to the vehicle and also the presence of the glass pieces in the scene of occurrence. The above material facts in ordinary case is not necessary. But, in the present case, the material circumstances are to be established by the prosecution. In this case, no material was adduced by the prosecution to satisfy the above three material circumstances. Moreover, not even they recovered either the toll gate receipt or CCTV footages. According to this Court, the same is material one. It is not the evidence of any of the toll gate officials that they broke the toll gate barricade. If it is the case of P.W.1 that the appellant drove the vehicle in order to escape from them and attempted to murder them by hitting the the car, then in all probablities damage should have been caused to the barricade of the toll gate. It is specific case of evidence of P.W.5 that the vehicles were found parked front and back side of the appellant's vehicle and only if the barricade is opened by the counter operator of the toll gate, the vehicle can pass through. In the said circumstance, the same was admitted by P.W.5 and the same is as follows:- fz;zho cile;jjhy; vjphpapd; ifapy; fhakhftpy;iy. Kd;Dk; gpd;Dk; vLj;jhy; Kd; gpd; epw;Fk; thfdq;fSf;F nrjkhFk; vd;W brhd;dhy; rhpjhd;. gpd;dhy; Page No.13/16 https://www.mhc.tn.gov.in/judis epd;w lhlh Vrp thfdj;jpw;F nrjkhdJ. mt;thW nrjkhdjhf vd; tprhuizapy; brhy;ytpy;iy. fhhpd; gpd; rPl;oy; fQ;rh ,Ue;jjhf nghyP]; tprhuizapy; brhy;ytpy;iy. 8.4. In view of the above, material discrepancies and the improbability between the evidence of P.W.1 and P.W.5, more particularly, non-production of CCTV Camera, this Court is unable to accept the evidence of P.W.1 and P.W.5 to convict the appellants under the grave charge of possession of 175 kg of ganja and also the further allegation that they attempted to murder P.W.1 and the officers by hitting over the car is unbelievable story and the indirect admission by P.W.1 that it is a false case to take revenge against the appellants is probable one. Hence, this Court is inclined to allow this appeal.9. Accordingly, this Criminal Appeal is allowed on the folowing terms:- 20.1.The judgment passed by the learned Additional District and Sessions Judge and Special Judge for EC and NDPS Act Cases, Pudukottai, in C.C.No.138 of 2019, dated 21.09.2021, is set aside.20.2.The appellants are acquitted from all the charges in C.C.No.138 of 2019 on the file of the learned Additional District and Sessions Judge and Special Judge for EC and NDPS Act Cases, Pudukottai.Page No.14/16 https://www.mhc.tn.gov.in/judis

20.3.Fine amount if any paid by the appellants shall be refunded to them forthwith. 20.4. Bail bond executed by the appellants shall stand cancelled.- Consequently, the connected miscellaneous petition is closed. 15.05.2025.NCC:Yes/NoIndex:Yes/NoInternet :Yes/NodssNote : Issue order copy on 19.05.2025Page No.15/16 https://www.mhc.tn.gov.in/judis K.K.RAMAKRISHNAN, J.dssTo:1.The Additional District and Sessions Judge and Special Judge for EC and NDPS Act Cases, Pudukottai.2.Inspector of Police, Mangalamedu Police Station, Perambalur.3.The Superintendent of Prison, Central Prison, Salem.4.The Superintendent of Prison, Central Prison, Trichy. 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. 4.The Section Officer, Criminal Section(Records), Madurai Bench of Madras High Court, Madurai.Crl.A.(MD).No.434 of 2021andCrl.MP(MD)No.1804 of 202415.05.2025Page No.16/16