BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED 06.12.2023 CORAM THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN Crl.A.(MD).Nos.95 and 211 of 2017 Muthukaruppan ... Appellant/Accused No.1 in Crl.A.(MD).No.211 of 2017 Kalidoss ... Appellant/Accused No.2 in Crl.A.(MD).No.95 of 2017 Vs.

The Inspector of Police, Palani Town Police Station, Dindigul District.

(In Crime Nos 1668 and 1669 of 2002)

... Respondent (In both the cases)

COMMON PRAYER : Criminal Appeals filed under Section 374 of the Criminal Procedure Code, to call for the records of the learned II Additional District and Sessions NDPS Court, Madurai, in C.C.No.73 of 2004 and set aside the judgment and conviction dated 15.11.2016 and acquit the appellants.

For Appellant : Mr.K.S.Duraipandian in Crl.A.(MD).No.95 of 2017 Mr.V.Vishnu in Crl.A.(MD).No.211 of 2017 For Respondent : Mr.T.Senthilkumar Additional Public Prosecutor (in both Crl.As.)

COMMON JUDGMENT

These Criminal Appeals have been filed to set aside the judgment rendered by the II Additional District and Sessions NDPS Court, Madurai, in C.C.No.73 of 2004 dated 15.11.2016 and consequently direct to acquit the appellants.

2.Since the appellants in these appeals are arrayed as accused No.

1 and 2 in the Crime Nos.1668 and 1669 of 2002, these appeals are taken up together for hearing and disposed of by way of this common judgment.

3.On 21.12.2002 at 06.30 p.m, while the P.Ws.2 and 3 were on patrolling duty, they suspected the appellants and after compliance of Section 50 of Narcotic Drug Psychotropic Substances Act, 1985, (hereinafter, for the sake of brevity, referred to as “NDPS Act”), made a search and seized 5 kgs of Ganja from the each of the appellants. Thereafter, the samples were taken from the seized contraband and prepared Athatchi in Ex.Ps.7 and 8 and produced the accused before the investigating Officer/P.W.4 and registered the case in Crime Nos.1668 and 1669 of 2002. P.W.4 investigated the case by obtaining chemical analysis report and examining the witnesses, filed the final report before the trial Court. After filing the final report, the same was taken on file in C.C.No.73 of 2004 by the learned II Additional District and Sessions NDPS Court, Madurai.

4.The learned trial Judge after appearance of the accused served the copies under Section 207 Cr.P.C. Then, he framed necessary charges and questioned the accused. The accused denied the charges and pleaded not guilty and stood for trial.

5.To prove the case, the prosecution examined P.W.1 to P.W.4 and exhibited 9 documents as Ex.P.1 to Ex.P.9 and produced 4 material objects as M.O.1 to M.O.4. Thereafter, all the accused were questioned under Section 313 Cr.P.C proceedings by putting the incriminating evidence against them and they denied the same as false and thereafter, the case was posted for defence evidence. On the side of the appellants no witness was examined and no documents were marked.

6.After considering the material adduced by the prosecution and also hearing the argument of the appellants and other accused, the trial Court convicted the appellants guilty for the offence under Sections 8(C) r/w 20(b)(ii)(c) of NDPS Act and sentenced them to undergo 3 years Rigorous Imprisonment each and to pay a fine of Rs.15,000/- each (totally Rs.30,000/-), in default to undergo six months Simple Imprisonment each.

Aggrieved by the same, the present appeals have been filed.

7.The learned counsel appearing for the appellants submitted that the mandatory provision of Section 42 of NDPS Act, has not been complied with by the respondent Police. There was a delay of 36 days in sending the samples to the Chemical Lab. There was a contradiction between the P.W.3 and P.W.4 regarding the seal on the samples. The learned trial Judge without considering the above circumstances, convicted the appellants. It is the duty of prosecution to prove the case beyond reasonable doubt. But, in view of the above material contradiction and the lapse on the part of the prosecution/investigating a