Mathi @ Mathiyalagan v. The State

Crl.A(MD)No.937 of 2023JUDGMENTThe appellant/sole accused in C.C.No.99 of 2015 on the file of Principal Special Court for NDPS Act Cases, Madurai, has filed this appeal, challenging the conviction and sentence imposed against him on 23.06.2023, by which, he was convicted for the offence under Section 8(c) r/w 20(b)(ii)(C) of the NDPS Act for the alleged possession of 22 kg of ganja without having any valid permission. 2.1. The brief facts of the case as follows:When P.W.3 was working as Inspector of Police, NIB CID, Madurai, on 28.04.2014, at 08.15 am, he received a secret information from his informant through the phone about the appellant's illegal possession and transportation of 22 kg of ganja near Sri Ammachiyar Temple, Sellur. He recorded the said information in the General Diary and reduced it in writing and informed the same to his Immediate Superior, namly, the Deputy Superintendent of Police, NIB CID, Madurai, and got permission. Thereafter, P.W.3 & P.W.2 and other police officers went to the spot with necessary equipment along with the informant and mounted surveillance. At about 09.00 a.m, the appellant was carrying a white colour gunny bag on his shoulder along the said Athoor Junction Road. The informant identified the Page No.2/13 https://www.mhc.tn.gov.in/judis Crl.A(MD)No.937 of 2023appellant. P.W.3 and 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 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.3 conducted search in the gunny bag, which was carried by the appellant in the presence of P.W.2 and other police officers. He found possession of ganja in the said bag and took the weightment of entire contraband and found the weight as 22kg and took the samples of S1 and S2 from the said bag and properly sealed the same. He also properly sealed the remaining contraband. Thereafter, he arrested the appellant. The appellant also gave a confession and the same was recorded by P.W.3. P.W.3 brought the accused to the police station along with the entire contraband and sample and registered a case in Crime No.75 of 2014 for the offence under Sections 8(C) r/w 20(b)(ii)(C) of NDPS Act and prepared a detailed report under Section 57 of NDPS Act and sent to his immediate superior and produced the accused before the learned Judicial Magistrate, along with the recovered contraband and samples taken from the said contraband on 28.04.2014 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.4 continued investigation and filed the final report before the Principal Special Court for NDPS Act Cases, Page No.3/13 https://www.mhc.tn.gov.in/judis Crl.A(MD)No.937 of 2023Madurai, and the same was taken on file in C.C.No.99 of 2015. 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.2.3. The prosecution, to prove the case examined P.W.1 to P.W.4 and exhibited 10 documents as Ex.P.1 to Ex.P10 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 examination of 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, convicted the accused for the offence under Sections 8(c) r/w 20(b)(ii)(C) of the NDPS Act, and sentenced him to undergo 10 years Rigorous Imprisonment each and to pay a fine of Rs.1,00,000/- (Rupees One Lakh only) each in default, to undergo, 6 months Simple Imprisonment.Page No.4/13 https://www.mhc.tn.gov.in/judis Crl.A(MD)No.937 of 20233. Challenging the same, present appeal has been filed. 4. The learned counsel for the appellant made the following submissions:-4.1.According to P.W.3, he received a secret information on 28.04.2014 at 08.15 p.m, and he reduced it in writting and informed the same to his immediate superior and hence, he has complied with the requirement under Section 42 of the Act. But, the learned counsel for the appellant would submit that the same was not properly complied with. There is no reference about the intimation acknowledged by the higher offcial and the same was admitted by P.W.3. 4.2. He would further submit that there is no explanation for the delay in producing the contraband before the Court below. Further, the case does not come under the definition of Section 8(C) r/w 2(b)(ii)(C) of the NDPS Act since the recovered contraband contained not only flowering and fruiting tops but also contained leaves and seeds and he prayed to allow this appeal by setting aside the conviction and sentence imposed by the learned trial Judge. Page No.5/13 https://www.mhc.tn.gov.in/judis Crl.A(MD)No.937 of 20235. Submission of the learned Additional Public Prosecutor :- 5.1. The learned Additional Public Prosecutor on instructions and upon perusal of the records would submit that it is the specific case of P.W.3 that he received a secret information on 28.04.2014 at 08.15 am and made an entry in the General Diary. Further, he informed the said information to the Immediate Superior. Hence, there is compliance of Section 42 of the Act. 5.2. He would further submit that the entire contraband and also the seized contraband was produced before the learned Magistrate within time and hence, delay in producing the contraband from the learned Judicial Magistrate to the Special Court is immaterial. 5.3. He would further contend that the submission of the learned counsel for the appellant that the recovered contraband included leaves and seeds. But, in view of the judgment of the Hon'ble Supreme Court in the case of 2009 2 SCC 26 and the judgment of this Court in Crl.OP(MD)No.18999 of 2024, the entire contraband should be taken into consideration. Hence, the argument of the learned counsel for the appellant cannot be accepted. Page No.6/13 https://www.mhc.tn.gov.in/judis Crl.A(MD)No.937 of 20236. 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.7.The question arising for consideration in this case is whether the conviction and sentence imposed by the learned trial Judge against the appellant for the offence under Sections 8(C) r/w 20(b)(ii)(C) of the NDPS Act is maintainable or not?8. Discussion on compliance under Section 42 of the Act :- 8.1. It is specific case of P.W.3 that he received the secret information on 28.04.2014, at 08.15 am and made an entry in the General Diary and reduced the same in writing and sent it to his Immediate Superior. The strict compliance of Section 42 of the Act is emphazised by the Hon'ble Supreme Court in the following judgments:-Karnail Singh v. State of Haryana, reported in (2009) 8 SCC 539:-“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 Page No.7/13 https://www.mhc.tn.gov.in/judis Crl.A(MD)No.937 of 202342(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.(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.Page No.8/13 https://www.mhc.tn.gov.in/judis Crl.A(MD)No.937 of 2023(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, 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 2001.8.2. From the above, it is clear that once 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 with the requirements of Section 42 of the Act. Page No.9/13 https://www.mhc.tn.gov.in/judis Crl.A(MD)No.937 of 20238.3. In this case, P.W.3, in his cross-examination, admitted the following facts:-ehd; kJiu NIB-apy; $Pd;; 2013 Kjy; 2014 [{d; tiu gzpg[hpe;njd;. jftypy; jfty; tptuj;ij nky; mjpfhhpf;F bjhpag;gLj;jpajhf mjpy; brhy;yg;gltpy;iy vd;why; rhpjhd;. jftiy gjpt[ bra;jjhf bghJ ehl;Fwpg;gpd; efiy ,t;tHf;fpy; jhf;fy; bra;atpy;iy. Ehd; brhy;Yk; jiug;ghyk; My;gh;l; ghyj;jpw;F nkw;F jpirapy; Rkhh; 500 kPl;lh; Jhuj;jpy; ,Uf;Fk;. mk;khl;rpak;kd; nfhapy; jiythry; fpHf;F jpiria nehf;fp cs;sJ. jfty; kw;Wk; tphpthf mwpf;if ,uz;ila[nkh nky; mjpfhhp bgw;Wf;bfhz;ljw;fhd Fwpg;g[fs; vJt[k; ,y;iy vd;why; rhp. 8.4. In Ex.P.5, there is no reference about the information was acknowledged by the Superior. Further, this is a printed format and using the printed form, the officers have mechanically filled out the form so as to show that it is a commercial case. It is the specific case of the appellant that P.W.3 obtained a secret information and also he is the Inspector of Police of the Special Branch namely, Narcotic Intelligence Bureau. Hence, he must know that the information should be forwarded to the higher official. In this case, P.W.3 has intentionally omitted to send the information to the higher official. Therefore, this Court presumes that this is a vexatious prosecution, and he is liable to be prosecuted under Section 58 of the NDPS Act. In this case, there is total non-compliance of Section 42 of the Act. In view of that, Section 42 is mandatory. P.W.3 admitted that he has not whispered about the compliance of Section 42 of the Act even in the report under Section 57 of the Act. Page No.10/13 https://www.mhc.tn.gov.in/judis Crl.A(MD)No.937 of 20239. In view of the above discussion, the considered opinion of this Court that the prosecution failed to prove the case beyond reasonable doubt against the appellant. 10. The Director General of Police, Chennai, is hereby directed to take necessary action against the Inspector of Police, namely, M.Madhan (P.W.3) for failing to follow the mandate of Section 42 of the Act, and for vexatious prosecution.11. Conclusion:- With the above direction, this Criminal Appeal is allowed on the following terms:- 11.1.The judgment passed by the learned Additional District Judge, Principal Special Court for NDPS Act Cases, Madurai, in C.C.No.99 of 2015, dated 23.06.2023, is set aside. 11.2.The appellant is acquitted from all the charges in C.C.No.99 of 2015, dated 23.06.2023, passed by the learned Additional District Judge, Principal Special Court for NDPS Act Cases, Madurai.Page No.11/13 https://www.mhc.tn.gov.in/judis Crl.A(MD)No.937 of 202311.3.Fine amount paid by the appellant shall be refunded to the appellant forthwith.11.4.Bail bond executed by the appellant shall stand cancelled. - Consequently, the connected miscellaneous petition is closed. 15.10.2025NCC:Yes/NoIndex:Yes/NoInternet:Yes/Nodss/sbnTo:1.The Additional District Judge, Principal Special Court for NDPS Act Cases, Madurai.2.The Inspector of Police, NIB CID, Madurai District.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.12/13 https://www.mhc.tn.gov.in/judis Crl.A(MD)No.937 of 2023K.K.RAMAKRISHNAN, J.dss/sbnCrl.A.(MD).No.937 of 2023andCrl.MP(MD)No.14725 of 202315.10.2025Page No.13/13