JUDGMENT

The appellant/Accused No.2 has filed this appeal seeking to set aside the judgment of conviction rendered by the learned Principal Special Judge, Special Court under N.D.P.S. Act, Chennai in C.C.No.59 of 2016 dated 04.06.2018.

2. This is the case under Narcotic Drugs and Psychotropic Substances (NDPS) Act, wherein the appellant(A2) along with one Suresh (A1) were charged for offence under Section 8(C) r/w 20(b)(ii)(B) and Section 29 of the NDPS Act. The trial Court on appreciating the oral evidence of P.W.1 to P.W.5, 11 documents marked as Exs.P1 to P11 and three material objects marked as M.O.1 to M.O.3, held Accused No.1 not guilty and acquitted him, whereas, the appellant herein/Accused No.2 was found guilty for offence under Section 8(C) r/w 20(b)(ii)(B) and sentenced him to undergo 5 years Rigorous Imprisonment and to pay a fine of Rs.50,000/-, in default, to undergo 1 year Rigorous Imprisonment.

3. The case of the prosecution is that on 18.03.2016 at about

8.15 a.m., P.W.1/Sub Inspector of Police attached to Pattabiram Police Station received a secret information that one Deveraj/appellant herein is selling Ganja near Hindu College Bus Stand. On receiving the said information, he reduced it into writing and forwarded to his immediate superior, the Inspector of Police and thereafter along with his team consisting of Grade-I Police Constables, namely, Ponnurangam and Velmurugan went to the spot mentioned by the informant and mounted surveillance. At about 9.00 a.m., the informant identified the accused was carrying polythene bag in his hand. When the said person was interrogated, he gave contemporary response. He was confirmed as Devaraj S/o.Madhavan and after informing the option for him to exercise his right to be searched before the learned Judicial Magistrate or gazetted officer, he decline to exercise the option and the same was recorded and thereafter search was conducted. From his possession, 1.240 kgs. of Ganja kept in the polythene cover was recovered. Two samples, each containing 20 gms. was drawn from the lot and sealed separately. A mahazar was prepared on the spot. The said Devaraj/appellant herein was arrested, thereafter his statement was recorded and brought to the Police station at 12.00 p.m. The case was registered in Crime No.160/2016 and detailed report under Section 57 of NDPS Act was forwarded to the immediate superior, the Inspector of Police. The evidence of P.W.1 was corroborated by P.W.2-Velmurugan, Grade-I Constable, who accompanied P.W.1. The samples drawn was sent for chemical analysis. Mrs.Thilagavathy, Deputy Director, Forensic Science Lab was examined as P.W.3. She deposed that on analysing the sample, she found that it contains 'Cannabinoid' component of Ganja. P.W.5-Mukesh Rao, Inspector of Police, who received the detailed report under Section 57 of NDPS Act from P.W.1 and investigated the case, had deposed that he took up the investigation on registration of the complaint and prepared Form 95 in respect of the seized contraband. He arrested Suresh/A1 on 18.03.2016 at 2.00 p.m. near 400 feet road based on the confession statement of the appellant/A2. P.W.5 is the only prosecution witness cross examined by the accused. The trial Court while appreciating the evidence, had relied upon Section 57 of the NDPS Act, which says about the presumption of possession and held that the prosecution has proved the recovery of M.O.1 to M.O.3 from Accused No.1, the appellant herein. The accused has failed to discharge his burden cast upon him under Section 57 of the NDPS Act. The concious possession of the Ganja has been proved by the prosecution and witnesses were not even subjected to cross examination, the case held to be proved beyond reasonable doubt. As far as the first accused is concerned, who was arrested on suspicion of conspiracy, was acquitted by the trial Court for want of evidence.

4. The learned counsel appearing for the appellant submitted that the trial Court erred in ignoring the