High Court · 2025

JUDGMENTThe appellant/Complainant in C.C.No.375 of 2015 on the file of II Additional Special Court for NDPS Act Cases, Madurai, has filed this appeal, challenging the acquittal order passed by the learned trial Judge in favour of the respondent on 27.07.2022. 2.1. The brief facts of the case as follows:When P.W.2 was working as Inspector of Police, NIB CID, Tuticorin, on 04.04.2019, at 09.45 am, she received a secret information from the informant through phone about the appellant's illegal possession and selling of ganja at Mappillaiyurani Vilakku. She recorded the said information in the General Diary and reduced it in writting under Ex.P.4 and informed the same to her Immediate Superior and got permission. Thereafter, at 10.20 a.m, P.W.2 and other police officers proceeded to the spot with necessary equipment along with the informant and mounted surveillance. At that time, the appellant was seen coming on a two wheeler namely, Honda Activa bearing Reg.No.TN-69-AP-4843. The informant identified the appellant. P.W.2 intercepted the appellant and introduced themselves as police officers and he was informed about his right to be searched before the Judicial Page No.2/14 https://www.mhc.tn.gov.in/judis Magistrate or the Gazetted officer as required under Section 50 of the NDPS Act. The appellant consented to conduct search by the officer himself and hence, P.W.2 conducted search and found two white colour sacks on the front seat of the said two wheeler. On search, she found the sacks containing Ganja and took the weightment of entire contraband and took the samples of S1 to S2 from the said bag and properly sealed the same. She also properly sealed the remaining contraband. Thereafter, she arrested the appellant. The appellant also gave a confession and the same was recorded by P.W.2. P.W.2 brought the accused to the police station along with the entire contraband and sample and registered a case in Crime No.27 of 2019 for the offence under Sections 8(C) r/w 20(b)(ii)(C) and 25 of NDPS Act and prepared a detailed report under Section 57 of NDPS Act. Following the same, P.W.2 handed over the custody of the accused to P.W.3 along with the contraband, sample along with the report under Section 57 of the Act. The Inspector of Police produced the accused before the learned Judicial Magistrate, along with the recovered contraband and samples taken from the said contraband on 05.04.2019 and made a request to remand him. After completing all the formalities, the learned Judicial Magistrate remanded the appellant in judicial custody. Thereafter, P.W.3 conducted investigation and filed the final report before the II Additional Special Court for NDPS Act Cases, Madurai, and the Page No.3/14 https://www.mhc.tn.gov.in/judis same was taken on file in C.C.No.375 of 2015. 2.2. The learned trial Judge issued summons to the accused and on his 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 trial.2.3. The prosecution, to prove the case examined P.W.1 to P.W.3 and exhibited 12 documents as Ex.P.1 to Ex.P12 and produced 3 material objects as M.O.1 to M.O.3. 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 and the case was posted for examinationof the witnesses on the side of the appellant. 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, acquitted the accused from the charges under Sections 8(c) r/w 20(b)(ii)(C) and 25 of the NDPS Act.Page No.4/14 https://www.mhc.tn.gov.in/judis

3. Challenging the same, present appeal has been filed by the State. 4.1. The learned Additional Public Prosecutor would submit that the learned Trial Judge has acquitted the accused only on the ground that there was no compliance of Section 42 of NDPS Act. The learned Judge also found that there was a major contradiction between of the evidence of PW2 and PW3 relating to the compliance of the section 42 of NDPS Act. The learned trial judge without any cross examination by the defence about the signature in Ex.P4, has erroneously doubted the signature of the superior. The learned Judge without properly considering Ex.P4 and Ex.P2 erroneously held that section 42 of NDPS Act was not complied with. The learned Judge also gave erroneous finding that the mentioning of the place of the procurement of the Ganja in the Ex.P1 created a doubt over the preparation of Ex.P1 and Ex.P4. The learned Trial Judge without properly analyzing the evidence of PW1 and PW2, erroneously acquitted the accused. Therefore learned Additional public Prosecutor sought to set aside the impugned judgment of acquittal. 4.2. The learned Counsel for the Respondent/Accused would submit that the learned Judge in Paragraph Nos. 15 to 21 gave a clear finding that the prosecution has not proved the strict compliance of the section 42 of Page No.5/14 https://www.mhc.tn.gov.in/judis NDPS Act and fabricated the documents to register the case against the Respondent. The said view is possible view and in this case no other view is available to convict the accused. In the said circumstance he sought to dismiss this appeal.4.3. Now the question that arises in this appeal is whether the impugned judgment acquitting the Respondent/accused from the charged offence under section 8(c) r/w 20(b)(ii)(C) of the NDPS Act for the possession of the 21.5 Kg Ganja is correct or not?4.4. PW2 deposed in cross examination that he recorded the information and informed to the higher officials. Ex.P4 also was produced to prove the same. Ex.P4 was marked without objection. The perusal of Ex.P4, shows that the same was produced before the learned Judicial Magistrate at the time of remand itself without any delay. In the Ex.P4 there was clear mentioning about the passing of information to the immediate superior. Therefore there was a compliance of mandate of Section 42 of the NDPS Act, and this court does not find any infirmity in compliance of section 42 of the NDPS Act and also the prosecution followed the direction issued by the Hon'ble Supreme Court in the case of Karnail Singh Vs. State of Haryana Page No.6/14 https://www.mhc.tn.gov.in/judis reported in 2009 (8) SCC 539. The Constitution Bench only directed to reduce the information in writing and inform to the superior. This court finds the said compliance from the evidence of the P.W.2 and Ex.P4. Therefore the finding of the learned Trial Judge that there was no compliance of Section 42 of NDPS Act is not correct. Further finding of the learned Trial Judge that Ex.P4 was self styled document and same should be rejected. This court is inclined to set aside the said finding. The other finding of the learned trial judge to acquit the accused is that there was a discrepancy between the evidence of prosecution witnesses about the receipt of information. When PW2 cogently deposed about the receipt of information and made entry in the general diary and reduced it in writing and informed to her superior, the discrepancy noted by the learned Trial Judge is not material one. The said finding also is not correct. 4.5. PW1 and PW2 clearly and cogently deposed that, when the accused was riding his two wheeler on 04.04.2019 at 11.00 a.m. with contraband, they intercepted him and recovered the Ganja of 21.5 kg after complying all formalities and the learned Trial Judge ought to have convicted the respondent for the alleged possession of the said Ganja. But learned trial judge has not even considered the said evidence relating to the recovery. Page No.7/14 https://www.mhc.tn.gov.in/judis PW1 and PW2 have clearly deposed about the recovery of the contraband as per law and their evidence is cogent and trustworthy and nothing was elicited to disbelieve their evidence. Therefore the prosecution clearly proved the recovery of 21.5 kg of Ganja from the Respondent/Accused beyond reasonable doubt. Further the prosecution clearly proved the recovery of huge quantity of Ganja on the basis of the evidence of PW1, PW2 and on the basis of Ex.P2, Ex.P4. The contraband also was produced before the court as a M.O.3. All the material documents were produced before the learned Judicial Magistrate without delay. Therefore this court holds that the learned Trial Judge has committed error in acquitting the accused by rendering perverse finding as against the evidence on record. Hence this Court is inclined to interfere with the order of acquittal.4.6. The offence under the NDPS Act is against society and hence the Act was introduced with reverse burden. In this case as discussed above, possession of the huge quantity of Ganja was proved and hence the presumption under section 54 of NDPS Act comes into operation and same has not been rebutted by the accused as per the section 35 of NDPS Act. Therefore this court is inclined to hold that the prosecution proved the case beyond reasonable doubt. Page No.8/14 https://www.mhc.tn.gov.in/judis

5.Discussion on maintainability of conviction under Section 8(C) r/w 20(b)(ii)(C) of the Act:-5.1. In this case, from the evidence of P.W.1 and P.W.2, it is not clear whether the weighment of the contraband was taken sans the weight of the bag, seeds and leaves. The presence of flowering or fruiting tops also is conspicuously absent. The chemical analysis report states that the contraband was found mixed with seeds and leaves. The material content of the report is as follows:- khjphpfspd; tptuq;fs;Kot[ kw;Wk; mwpf;if“cyh;e;j epiyapy; gRik fye;j gGg;g[ epwKs;s rpW ,iyfSld; Toa fjph;fs;> tpijfs; kw;Wk; behWq;fpa ,iyfSld; Toa bghUl;fspd; epfu vil 25 fpuhk;.4 khjphpfspYk; bfdhgpdhapLfs;; ,Ug;gJ fz;lwpag;gl;lJ. 5.2. It is also not clear from the records that the seized contraband contained flowering or fruiting tops of the ganja without stem, leaves and seeds. But, in the report of the chemical analysis it it opined about presence of the cannabis. Further, there was no separate weight measurement of gunny bag. In view of the above discussion, excluding the weight of the leaves, seeds and bag, the case of the appellant comes under the category of below commercial quantity. Therefore, this Court accepts the contention of the Page No.9/14 https://www.mhc.tn.gov.in/judis appellant's counsel that conviction under Section 8(C) r/w 20(b)(ii)(C) of the NDPS Act, is not legally maintainable. 6.Conclusion :- In view of the above discussion, the appeal is allowed in part and the respondent accused is found guilty under Section 8(C) r/w 20(b)(ii)(B) of the NDPS Act. 7.List this case for appearance of the respondent/accused for questioning on the sentence of imprisonment on 24.10.202515.10.2025NCC:Yes/NoIndex:Yes/NoInternet:Yes/NosbnPage No.10/14 https://www.mhc.tn.gov.in/judis

8.Appearance and question of sentence:As per the direction of this Court, dated 15.10.2025, the accused appeared before this Court. When the respondent was questioned under Section 235(2) of Cr.P.C., about the sentence of imprisonment to be passed, he has pleaded as follows:Accused NameAnswer of the accusedVadivel vdf;F 65 taJ MfpwJ. ehd; ve;j jtWk; nra;atpy;iy. vdf;F ,Uja Neha; kw;Wk; %r;R jpdwy; gpur;rid ,Ue;J tUfpwJ. vd;id ghJfhj;Jf;nfhz;bUe;j xNu kfd;; ,we;Jtpl;lhd;. vdJ Ngu gps;isfis ehd; jhd; ftdpj;Jnfhs;s Ntz;Lk;. vdJ Ngug;gps;isfs; ,uz;Lk; gs;spapy; gbf;fpd;wdh;. ,J tiu vd; kPJ ve;j tof;Fk; ,y;iy. MfNt fUiz mbg;gilapy; vdf;F Fiwe;j gl;r jz;lid toq;f Nfl;Lf;nfhs;fpNwd;. 9.Discussion on sentence:The learned counsel appearing for the respondent also on the basis of the above mitigating circumstances, seeks to impose minimum sentence.10.Sentence of Imprisonment:Considering the age of the respondent and his good conduct in the jail from 04.04.2019 to 27.07.2022 and he is suffering from heart ailment and he has to take care of two grand children, this court is inclined to impose the Page No.11/14 https://www.mhc.tn.gov.in/judis sentence of imprisonment as he already undergone. 11.Accordingly, the Criminal Appeal is allowed in part in the following terms:-(i)acquittal judgment passed against the respondent for the offence under Section 8(c) r/w 20(b)(ii)(C) of the NDPS Act in C.C.No.365 of 2020, by the II Additional Special Court for NDPS Act Cases, Madurai, vide judgment, dated 16.06.2020, is hereby set aside.(ii) This Court convicts the appellant for the offence under Section 8(c) r/w 20(b)(ii)(B) of the NDPS Act and sentenced him to as already undergone.(iii) Bail bond executed by the appellant shall stands cancelled. 24.10.2025.NCC:Yes/NoIndex:Yes/NoInternet:Yes/Nodss/sbnPage No.12/14 https://www.mhc.tn.gov.in/judis To:1.The II Additional Special Court for NDPS Act Cases, Madurai.2.The Deputy Superintendent of Police, NIB-CID, Dindigul.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.Page No.13/14 https://www.mhc.tn.gov.in/judis K.K.RAMAKRISHNAN, J.dss/sbnCrl.A.(MD).No.856 of 202315.10.2025&24.10.2025Page No.14/14