High Court · 2025

Crl.A.(MD).No.932 of 2023and same was taken on file in C.C.No.76 of 2016 U/s.8(c) r/w 20(b)(ii)(C) of NDPS Act r/w 34 IPC Act.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 on 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, r/w 34 IPC 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 for trial.4. The prosecution in order to prove its case, had examined 2 witnesses as P.W.1 and P.W.2 and exhibited 12 documents as Ex.P.1 to Ex.P.12 and marked six material objects M.O.1 to M.O. 65. When the accused were examined under Section 313 (1) (b) Cr.P.C with regard to the incriminating materials available against them from the evidence of prosecution, they denied the evidence as 4/27 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.932 of 2023false 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 No.1 namely Appellant herein in C.C.No.76 of 2016 was guilty U/s.8(c) r/w 20(b)(ii)(C) NDPS Act and passed the conviction and sentenced him to undergo 12 years of Rigorous Imprisonment and to pay a fine of Rs.1,00,000/- in default to undergo further 24 months of Simple Imprisonment. The Learned Trial Judge acquitted A2. The appellant challenging the conviction and sentence of imprisonment has filed this appeal .7.The submission of the Learned Counsel for the Appellant:The learned counsel for the appellant would submit that there was no evidence available on record to show that the accused was carrying two bags of contraband or he was found in conscious possession of two bags of Ganja. The only piece of evidence is the evidence of P.W.1 who would say that the bags were found on the 5/27 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.932 of 2023main road when the appellant was standing and there was no circumstances available to prove the actual possession of the contraband by the appellant. Therefore, the conscious possession by the appellant is not proved. Therefore, he seeks to acquit the appellant.7.1.The learned counsel for the appellant would further submit that according to the prosecution, the deceased Murugesan , SSI had received the secret information and reduced the same in writing under Ex.P4 and Ex.P5. The SSI expired. Hence, it is the duty of the prosecution to prove the signature of the deceased/Murugesan in the material exhibits. The prosecution examined two witnesses. Both witnesses never deposed about the signature of the deceased Murugesan. When the accused faces a trial with harsh punishment, it is the duty of the prosecution to prove the basic requirements, namely, conscious possession and compliance of mandatory requirement as per Section 42 of the NDPS Act, 1985. It is the duty of the prosecution to produce the document and prove the document as per law and the same has not been done in this case. Therefore, he seeks to acquit the accused on the ground of non-compliance of Section 42 of the NDPS 6/27 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.932 of 2023Act, 1985. The learned counsel for the appellant would also submit that there was an unexplained delay of 9 days in producing the contraband before Court below. The accused was remanded without production of contraband. The learned Judicial Magistrate also recorded the same in form 91 and the same has also been admitted by P.W.2 and the safe custody of the contraband is also not established. Therefore, the learned counsel for the appellant would submit that there was doubt over the recovery of the contraband from the accused. He would also submit that the accused's presence has not been proved on the ground that the recovery mahazar (Athachi) and the arrest memo, do not contain the signature of the accused. He would further say that in murder cases, the recovery is made on the basis of disclosure statement of the accused recorded under Section 27 of the Indian Evidence Act. In that case the conviction is not based on the basis of the recovery alone. But, in this case, conviction was passed only on the basis of the possession. Hence, he seeks to appreciate the said material to acquit the appellant. 7/27 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.932 of 20238.Submission of the learned Additional Public Prosecutor:The learned Additional Public Prosecutor, on going through the records and also the impugned judgment would submit that the signature in the Athachi, arrest memo is not material when his signature is found in the consent letter and other documents. Therefore, the said omission is not a material omission to disbelieve the evidence of P.W.1.8.1.The learned Additional Public Prosecutor also would submit that there was no bar to convict the accused on the basis of the evidence of sole witness when his evidence is reliable and trustworthy. According to the learned Additional Public Prosecutor his evidence comes under the first category of the evidence laid down by the Hon'ble Supreme Court in the case of Vadivelu Thevar vs. State of Tamilnadu reported in 1957 SCC OnLine SC 13. The learned Additional Public Prosecutor also would submit that compliance of Section 42 of the NDPS Act, was clearly deposed by P.W.1 and P.W.2 and document was marked without objection and hence, the absence of the proof of signature of the deceased Murugesan, namely, the 8/27 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.932 of 2023Search Officer is not fatal to the prosecution. More particularly, Ex.P5 was marked and P.W.2 deposed about the receipt of the said information. The learned Additional Public Prosecutor would also submit that the prosecution has proved the case by examining P.W.1 and P.W.2 and through the documents. Therefore, he seeks to confirm the impugned judgment.9.This Court considered the rival submissions made by the learned counsel appearing for the appellant and the learned Additional Public Prosecutor 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 whether the conviction and sentence passed against the appellant can be sustained or not?9/27 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.932 of 202311.Discussion:Prosecution alleged that the appellant was found in possession of huge quantity of “Ganja” and therefore, it is duty of the prosecution to prove the foundational facts namely conscious possession and the compliance of the mandatory requirement as per the NDPS Act beyond reasonable doubt so as to attract the rigours of Sections 35 and 54 of the Act and the Hon'ble Supreme Court has reiterated the said requirement in view of the stringent provisions of the NDPS Act, such as Section 37, the minimum sentence of 10 years, and absence of any provision for remission in the following cases: 11.1. In the case of Noor Aga v. State of Punjab [Noor Aga v. State of Punjab, reported in (2008) 16 SCC 417, the Hon'ble Supreme Court has held as follows:“58. …If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established.59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of 10/27 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.932 of 2023the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt.” 11.3. In the case of Gangadhar v. State of M.P., reported in (2020) 9 SCC 202 the Hon'ble Supreme Court has held as follows:8. The presumption against the accused of culpability under Section 35, and under Section 54 of the Act to explain possession satisfactorily, are rebuttable. It does not dispense with the obligation of the prosecution to prove the charge beyond all reasonable doubt. The presumptive provision with reverse burden of proof, does not sanction conviction on basis of preponderance of probability. Section 35(2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability.10. The stringent provisions of the NDPS Act, such as Section 37, the minimum sentence of 10 years, absence of any provision for remission do not dispense with the requirements of prosecution to establish a prima facie case beyond reasonable doubt after investigation, only whereafter which the burden of proof shall shift to the accused. The gravity of the sentence and the stringency of the provisions will therefore call for a 11/27 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.932 of 2023heightened scrutiny of the evidence for establishment of foundational facts by the prosecution.11.4. In the case of Gopal V. State of M.P., reported in 2002 9 SCC 595 the Hon'ble Supreme Court has held as follows:6....In the face of this evidence, it is not possible to hold that the appellant could be said to be in conscious possession of the contraband. Both the courts below have allowed surmises and conjectures to take the place of proof. That cannot be done. The possibility that the appellant has been roped in due to misguided suspicion cannot be ruled out...11.5. Balwinder Singh v. Narcotics Control Bureau, (2024) 13 SCC 734 the Hon'ble Supreme Court has held as follows: 25... Emphasis was laid on the well-settled principle of criminal jurisprudence that more serious the offence, the stricter would be the degree of proof and a higher degree of assurance would be necessary to convict an accused. 26. Thus, it can be seen that the initial burden is cast on the prosecution to establish the essential factors on which its case is premised. After the prosecution discharges the said burden, the onus shifts to the accused to prove his innocence. However, the 12/27 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.932 of 2023standard of proof required for the accused to prove his innocence, is not pegged as high as expected of the prosecution. The essence of the discussion in the captioned case was that for attracting the provisions of Section 54 of the NDPS Act, it is essential for the prosecution to establish the element of possession of contraband by the accused for the burden to shift to the accused to prove his innocence. This aspect of possession of the contraband has to be proved by the prosecution beyond reasonable doubt.12.This case rests upon the sole evidence of the police witness PW.1. As per the judgement of the Hon'ble Constitution Bench of the Supreme Court in the case of Mukesh Singh Vs. State (Narcotic Branch of Delhi) reported in (2020) 10 SCC 120, there is no necessity to examine independent witnesses and there is no bar to record the conviction on the evidence of the police officers. The Police officer's evidence can be relied without corroboration of the independent witnesses if their evidence is unimpeachable.13.It is also well settled principle that there is no bar to record conviction on the basis of the testimony of the sole witness if it is 13/27 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.932 of 2023reliable and trustworthy and if comes under the parameter of the “reliable witness” as stated by the Hon'ble Supreme Court in the case of Vadivel Thevar Vs. State of Tamilnadu reported in AIR 1957 SC 614. 14. The Hon'ble Supreme Court has devided the testimony of the sole witness in three categories and laid the following three principles in the case of Vadivel Thevar Vs. State of Tamilnadu reported in AIR 1957 SC 614:-(1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unreliable.14.1 In the case of wholly reliable witness conviction can be recorded and in the other cases of “Wholly unreliable” and “Neither wholly reliable nor wholly unreliable” witnesses a different yardstick is provided. Therefore, it is the duty of this court to find out whether the evidence of P.W.1 comes under the category of “Wholly reliable”, “Wholly unreliable” or “Neither 14/27 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.932 of 2023wholly reliable nor wholly unreliable witness”. 14.2. As per the law laid down by the Hon'ble Supreme Court, the evidence of P.W.1 does not come under the category of “wholly reliable testimony”. Here, in this case, there are number of infirmities and inconsistencies in the evidence of P.W.1 such as:(i) he has not disclosed about the vehicle in which they went to the scene of occurrence situated 65 km away from Police Station;(ii) he has not stated about “Dry Ganja” in the recovery mahazar; (iii)he has not stated about the usage of the weighing scale to weigh the contraband;(iv) he did not have knowledge about computer print form namely Arrest Memo, Consent Letter, Recovery Mahazar and Inspection Report; (v) he admitted that there was no referrence about the S1 to S4 and P1 and P2 in the recovery mahazar;(vi) he also admitted that there is no referrence about the weight of two bags and seal particulars and more particularly he had not 15/27 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.932 of 2023signed athachi with date; (vii) there is no plausible explanations to how they arrived to the place of the occurrence, namely, opposite to Thamiyan hospital Old Age Home, on Nilakottai to Anaipatti Road when there was no clear mentioning about actual place of the occurrance in the secret information recorded under Ex.P.5 and(viii) he did not depose about the signature of the deceased Murugesan, Search Officer in Ex.P.2, Ex.P.3 and Ex.P.5.15.In this case, the material witness namely the Search Officer, Mr.Murugesan, Special Sub-Inspector of Police died. If he is alive his evidence is material to prove the compliance of the Section 42 of NDPS Act and recovery of the contraband.16.In the absence of his evidence, to prove the recovery of contraband from the appellant, it is duty of the prosecution to examine the other police officers who had accompanied PW.1. The said corrobaration is not normally required in ordinary case. But, in this case recovery of 48Kg of “Ganja” was made from the Appellant 16/27 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.932 of 2023and also he is said to have been standing with two bags of weighing 48Kg of “Ganja” opposite to the “Nilakottai Thamin Hospital Oldage Home” situated in the Nilakottai to Anaipatti Road and the deceased Search Officer made recovery of two bags of “Ganja” under the recovery mahazar Ex.P.2 (Athachi). In the said recovery mahazar, signature of the Appellant is conspicuously not found. This is the material document to prove the presence of the accused in the scene of occurrence and the recovery of the contraband. In the case of the Murder cases, normally the recovery is proved through the examination of the Village Administrative Officer on the basis of the disclosure statement made U/s.27 of Evidence Act. In these types of cases, absence of the signature of the accused has no significance and conviction need not be passed on the basis of the recovery alone. But, under the NDPS Act, possession itself is offence and recovery of the contraband itself is a material circumstance which casts reverse burden on the accused U/s.54 & 35 of the NDPS Act and hence recovery mahazar is the basic document to prove the recovery from the accused. Therefore, this court holds that signature of the accused in the recovery mahazar to prove his presence with contraband and 17/27 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.932 of 2023recovery of the contraband from him is necessary unless prosecution established that accused refused to sign the recovery mahazar. 17.In this case, Ex.P.2 recovery mahazar did not contain the signature of the Appellant and also Arrest Memo Ex.P.3 and there is no plausible explanation either from PW.1 or from PW.2 for such absence of singature. Even there is no explanation in the 57 report submitted by the deceased Search Officer to PW.2 to show that the accused refused to sign the recovery mahazar. This Court also is unable to accept the argument of the Learned Additional Public Prosecutor that the said omission is not material when the signature of the accused was found in the consent letter which was prepared U/s.50 of the NDPS Act for the reason that even according to the Learned Additional Public Prosecutor section 50 is not applicable to the present case. Each fact is to be proved as per Section 3 of the Evidence Act. More particularly, in this type of harsh punishment case, each material fact has to be proved by the prosecution indenpendently without basing on the other immaterial documents either collected or prepared. All the documents are in printed form and signature was 18/27 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.932 of 2023found in the immaterial documents and signature was not found in the material document. Any casual omission is not material but omissions which are material has to be explained in the contemporaneous document then and there. There is no such explanation. There are occassions where the searching officers would have expired and in those circumstances, it is the duty of the prosecution to prove the documents prepared by the said deceased witness through other means, namely, by examining other witnesses who accompanied the said deceased witness and identify the documents prepared by the said deceased witness. But in this case the prosecution has not taken such efforts to prove Ex.P2 and Ex.P3. Hence, this Court holds that the prosecution failed to prove the prosecution and recovery.18.The non-examination of the independent witnesses is not fatal to the prosecution as per the law laid down by the Hon'ble Supreme Court in Mukesh Singh Vs. State (Narcotic Branch of Delhi) reported in (2020) 10 SCC 120. But, the non-examination of the police witnesses to substantiate the proof of recovery and possession is a 19/27 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.932 of 2023serious lapse. The NDPS Act provides harsh punishment. Therefore, the prosecution ought to have proved the recovery beyond reasonable doubt by examining the material witnesses. The non-examination of the other police witnesses, in view of the death of the Search Officer is fatal to the prosecution. To convict the accused under 8(c) r/w 20(b)(ii)(C) of the NDPS Act, 1985, r/w 34 IPC of the NDPS Act, there is heavy burden on the prosecution to prove the possession. According to the learned Additional Public Prosecutor, except P.W.1, no other witnesses have been examined to prove the recovery, for taking of samples, for arrest of the accused and for production of the accused before the immediate superior. 19.There are two versons about the recovery of the contraband. In Ex.P3 it is stated that the contraband recovered from the hands of the appellant ie., “jftyhsp Rl;b fhl;;ba jpirapy; jfJ ifapy; nts;is epw ,uz;L gpsh];bf; rhf;FigAld; te;j egiug; gpbj;J jftyhsp milahsk; fhl;ba gFjpapy; ghh;f;Fk;NghJ jdpegh; xUth; epd;W nfhz;bUe;jhh;. mtUf;F Kd;dhy; ,uz;L nts;is rhf;F %l;ilfs; ,Ue;jJ.”20/27 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.932 of 202320. One of the version that the appellant carried 48 kg ganja in his hand in two bags on the main road is both humanly impossible and improbable. The said version is nto supported with material evidence.20.1. P.W.1 in his evidence stated that two bags containing contraband were lying where the accused was standing.There is no clear evidence about the conscious possession by the appellant. There was no material adduced to prove the actual physical control and custody of the contraband by the accused. The contraband was lying on the road where the accused was standing. But the prosecution has not proved the nexus between the accused and the contraband. The Hon'ble Supreme Court in the case of Mohan Lal v. State of Rajasthan, reported in (2015) 6 SCC 222 has emphasised the strict proof of actual possession to record the conviction and the relevant paragraph is as follows:11. When one conceives of possession, it appears in the strict sense that the concept of possession is basically connected to “actus of physical control and custody”. Attributing this 21/27 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.932 of 2023meaning in the strict sense would be understanding the factum of possession in a narrow sense. With the passage of time there has been a gradual widening of the concept and the quintessential meaning of the word “possession”. The classical theory of the English law on the term “possession” is fundamentally dominated by Savigny-ian “corpus” and “animus” doctrine. Distinction has also been made in “possession in fact” and “possession in law” and sometimes between “corporeal possession” and “possession of right” which is called “incorporeal possession”. Thus, there is a degree of flexibility in the use of the said term and that is why the word “possession” can be usefully d efined and understood with reference to the contextual purpose for the said expression. The word “possession” may have one meaning in one connection and another meaning in another.21.The recovery was made in the open place and there was no strong material to record a finding of the conscious possession by the appellant. The contraband was found on the main road and there was no connecting evidence to link the accused's possession. Without any concrete material atleast to presume the possession of the contraband by the accused, this Court holds that the prosecution failed to prove the appellant's conscious possession of the contraband. It is settled 22/27 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.932 of 2023principle that conviction cannot be recorded on surmise and suspicion. The Court cannot act on the suspicion however grave without any strict proof of possession. More particularly, in this type of the reverse burden cases with stringent punishment, the Court cannot act on the suspicion. In view of the above discussion, the prosecution miserably failed to prove the conscious possession of the contraband by the appellant.22. Yet another material infirmity in the prosecution case to doubt the recovery is that there was an unexplained delay of 9 days in producing the contrband before the competent Court. According to the prosecution, the recovery was made on 09.07.2013 and the same was produced before the Court only after eight days and the same was also admitted by P.W.2 and the relevant evidence is as follows:“ePjpkd;wj;jpy; 17.07.2013 md;W xg;gilf;fg;gl;L tof;F Mtzq;fs; tug;glhj fhuzj;jhy; jpUg;gg;gl;L kPz;Lk; 19.07.2013 md;W gbtk; 95d; %yk; nrhj;Jf;fs; xg;gilg;G nra;ag;gl;Ls;sJ. mJ tiu nrhj;Jf;fs; ahh; ghJfhg;gpy; ,Ue;jJ vd;gJ njhlh;ghf Mtzq;fs; vJTk; jhf;fy; nra;atpy;iy vd;why; rhpjhd;.”23/27 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.932 of 202323. In most of the cases, this Court has rejected the argument of the counsel raising doubt over the recovery on the delay of the production before the learned Special Court upon the perusal of the Form-95, which contained the particulars about the production of the contraband at the time of the remand along with the accused. But, in this case, the learned Judicial Magistrate at the time of remand itself stated that the contraband was not produced and made the following endorsement and the same has also been admitted by P.W.1 in Ex.P9 “Property not produced. Produced with property before proper Court”. 24.Therefore, this Court entertains reasonable suspicion over the recovery of contrband. 25.In view of the above infirmities and inconsistencies and inherent improbablities, this Court holds that the prosecution miserably failed to prove the possession of the huge quantity of the contraband in two bags in the custody of the appellant. Hence, the appellant made out a case for acquittal. 24/27 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.932 of 202326. In the result, this Criminal Appeal stands allowed. Consequently, connected miscellaneous petition is closed. 26.1. The conviction under Section 8(c) r/w 20(b)(ii)(C) of NDPS Act passed by the learned II Additional Special Judge, Special Court for NDPS Act cases, Madurai, by judgment dated 13.09.2023, in C.C.No.76 of 2016, is hereby set aside.26.2. The appellant is acquitted from all the charges in C.C.No.76 of 2016, on the file of the learned II Additional Special Judge, Special Court for NDPS Act cases, Madurai.26.3.Fine amount paid by the appellant shall be refunded to the appellant forthwith. 26.4.Bail bond executed by the appellant shall stand cancelled. 05.11.2025NCC:Yes/NoIndex:Yes/NoInternet:Yes/Nosbn25/27 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.932 of 2023To1.The II Additional Special Court for NDPS Act cases, Madurai.2.The Inspector of Police, NIB-CID, Dindigul.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.26/27 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.932 of 2023 K.K.RAMAKRISHNAN.J,sbnCrl.A.(MD).No.932 of 202305.11.202527/27