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2015 Supreme(Mad) 1297
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
M. SATHYANARAYANAN, J.
Murugan & Another – Appellant
Versus
The State through The Inspector of Police – Respondent
Criminal Appeal (MD)No. 426 of 2007
Decided on: 11-03-2015
Advocate Appeared
For the Appellants: V. Ramalingam, Amicus Curiae.
For the Respondent:S. Prabha, Govt. Advocate (Crl. Side).
Non-compliance with mandatory provisions under the NDPS Act and lack of evidence showing possession of the house by the accused led to the acquittal of the appellants.
Headnote:
NDPS Act - Acquittal due to non-compliance with mandatory provisions - Section 8(b) r/w 20(a)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 42(2) and Section 57 of the NDPS Act - Summary of the judgment's legal framework and key provisions
Fact of the Case:
The appellants were convicted under Section 8(b) r/w 20(a)(i) of the NDPS Act for rearing ganja plants. The trial court ordered their conviction and sentence, which was challenged in the present Criminal Appeal.
Finding of the Court:
The court found that the appellants were entitled to be acquitted due to non-compliance with mandatory provisions under Section 42(2) and Section 57 of the NDPS Act. It was noted that the prosecution failed to collect material showing possession of the house by the accused and that the evidence against the appellants was lacking.
Issues: Non-compliance with mandatory provisions under the NDPS Act, lack of evidence showing possession of the house by the accused, and insufficiency of evidence against the appellants.
Ratio Decidendi: The court's decision to acquit the appellants was based on the non-compliance with mandatory provisions under the NDPS Act and the lack of evidence showing possession of the house by the accused, leading to insufficiency of evidence against the appellants.
Final Decision: The Criminal Appeal was allowed, the judgment of the trial court was set aside, and the appellants were acquitted of the charges. The bail bonds were terminated, and any fine paid by the appellants was directed to be refunded to them.
1. The appellants are arrayed as accused in C.C.No.930 of 2003 on the file of the Court of Special District and Sessions Judge for EC and NDPS Act Cases, Madurai and they stood tried, charged and convicted, vide impugned judgment dated 09.08.2007, thus:
| Accused | Conviction | Sentence |
| A-1 | U/s.8(b) r/w 20(a)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985, (in short 'NDPS Act'). | To undergo rigorous imprisonment for six years and to pay a fine of Rs.10,000/- in default to undergo rigorous imprisonment for six months. |
| A-2 | U/s.8(b) r/w 20(a)(i) of the NDPS Act. | To undergo rigorous imprisonment for six years and to pay a fine of Rs.10,000/- in default to undergo rigorous imprisonment for six months. |
The trial Court has also ordered set-off under Section 428 Cr.P.C and challenging the legality of the same, the present Criminal Appeal is filed.
2. When the appeal was called on 11.02.2015, the learned Counsel for the appellants was absent and hence, the matter was directed to be listed on 25.02.2015 for appointment of Amicus Curiae and disposal. Once again, the learned Counsel for the appellants, was absent on 25.02.2015 and hence, this Court appointed Mr.V.Ramalingam, (Enrolment No.2662/2010) No.16, Law Chambers, Madurai Bench of Madras High Court, Madurai, as Amicus Curiae to assist this Court.
3. It is the submission of the learned Amicus Curiae appearing for the appellants that according to P.W.4, he received the information through the informant that A-1 and A-2 are rearing 'ganja' plants and accordingly, they along with the police party, proceeded to Vagaikulam village and went to the house bearing Door No.7/57, wherein in front of the said house, three ganja plants were reared by A-1 and tendered by A-2 and after complying with necessary formalities, has seized the contraband and also effected arrest of the accused and came back to the Police Station and registered a case in Cr.Nos.185 and 186 of 2002 and admittedly, the mandatory provisions under Section 42(2) of the NDPS Act, have not been complied with P.W.4 and hence, the appellants are entitled to be acquitted.
4. It is also the submission of the learned Amicus Curiae appearing for the appellants that even as per the own admission of P.W.1 and P.W.4, no materials have been collected to show that the house in which the ganja plants were reared, belonged to A-1 and in the absence of the said vital material, it cannot be concluded that A-1 and A-2 had committed the offences and prays for acquittal.
5. Per contra, Mrs.S.Prabha, learned Government Advocate (Criminal Side) for the respondent would submit that the respondent after due and proper compliance of all the formalities contemplated under the NDPS Act, has charge-sheeted the accused and by letting in oral and documentary evidence, has proved the guilt on the part of the accused beyond any reasonable doubt and prays for the dismissal of this appeal.
6. This Court has carefully considered the rival submissions and also perused the materials available on record.
7. P.W.4, after investigation, has filed the final report on the file of the Court of Special District and Sessions Judge for EC and NDPS Act Cases, Madurai, charging the accused for the commission of the offences under Sections 8(b) r/w 20(a)(i) of the NDPS Act and on their appearance, the trial Court has furnished with them the copies of documents under Section 207 Cr.P.C. and later on, framed the issues and questioned them and they pleaded not guilty to the charges framed against them.
8. The respondent in order to sustain their case, has examined P.W.1 to P.W.5 and marked Exs.P.1 to P.6 and also marked M.O.1.
9. Both the accused were questioned under Section 313(1)(b) of the Code of Criminal Procedure, 1973, with regard to the incriminating circumstances made out against them in the evidence tendered by the p
