BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Date : 22.06.2023 CORAM:

THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN Crl.A.(MD)No.243 of 2016 Murugan ... Appellant/A1 vs.

The State Represented by The Inspector of Police, Peraiyur Police Station, Madurai District.

In Crime No.17 of 2003 ...Respondent/Respondent PRAYER : This Criminal Appeal has been filed under Section 374 of Cr.P.C., to call for the records in C.C.No.223 of 2006 relating to the Judgment dated 20.06.2016 passed by the learned II Additional NDPS Act Cases, Madurai and to set aside the Judgment of the conviction on the appellant/A1.

For Appellant : Mr.S.Muniyandi For Respondent : Mr.T.Senthilkumar Additional Public Prosecutor

JUDGMENT

This Criminal Appeal has been preferred as against the Judgment of Conviction passed in C.C.No.223 of 2006 by the learned II Additional NDPS Act Cases, Madurai, dated 20.06.2016 and thereby, convicted the appellant for the offence under Section 8(c) r/w 20(b)(ii)(B) of NDPS Act.

2. The case of the prosecution is that on 22.03.2003, when the defacto complainant was working as Inspector of Police in Sedapatti Police Station, received a secret information that the accused are coming with Ganja in a motorcycle. Therefore, the respondent and his team went to the scene of crime and found the second accused along with the contraband weighing 10 kgs of Ganja. After seeing the police party, the first accused fled away from the scene of crime leaving a gunny bag. The gunny bag consisting 15 kgs of Ganja, which was left out by the first accused. Both the bags were recovered by the respondent by supporting seizure mahazar and after taking two samples weighing 50 grams each from the gunny bag, sealed the remaining contraband and thereafter, registered the FIR in Crime No.17 of 2003 for the offence under Sections 8(c) r/w 20(b)(ii)(B) of NDPS Act. After completion of investigation, the respondent police filed a final report and the same has been taken cognizance by the trial Court in C.C.No.223 of 2006. The second accused has not appeared before the trial Court and the case has been split up by the trial Court as against the second accused in C.C.No.154 of 2016. Insofar as the trial in C.C.No.223 of 2006 is concerned, it was proceeded as against the first accused.

3. In order to prove the charge, the prosecution had examined P.W.

1 to P.W.4 and marked Ex.P.1 to Ex.P.13. The prosecution has produced material objects as M.O.1 to M.O.6. On the side of the accused, no one was examined and no documents were marked.

4. On perusal of the oral and documentary evidence, the trial Court found the appellant guilty for the offence under Section 8(c) r/w 20(b)(ii) (B) of NDPS Act and sentenced him to undergo 5 years Rigorous Imprisonment and imposed to pay a fine of Rs.20,000/- in default to undergo 6 months Simple Imprisonment. Aggrieved by the same, the present appeal.

5. The learned counsel for the appellant would submit that the second accused was acquitted by the trial Court by Judgment, dated

30.11.2018. The appellant was convicted by the same trial Court with the same evidence on record. He would further submit that the respondent has failed to follow the mandatory provisions under Section 50(1) and 42(2) and 57 of NDPS Act. Even according to the case of the prosecution, the appellant was fled away from the scene of crime and even then, there was separate seizure mahazar. If the first accused was in possession of 15 kgs of Ganja, except confession statement from the second accused, no other material produced by the prosecution to prove that the first accused was present in the scene of crime and he was possessed 15 kgs of Ganja. Further, the seizure mahazar which was marked as Ex.P.2 and Ex.P.3 did not contain the signature of the second accused, which was allegedly seized from the second accused. It was categorically admitted by P.W.1. Even then, the trial Court without considering those grounds, has mechanically convicted the appellant.

6. Per contra, the learned