IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 17.06.2022

CORAM:

THE HON'BLE DR.JUSTICE G.JAYACHANDRAN

Crl.A.No.430 of 2018

and

Crl.M.P.No.9932 of 2018

Devaraj

... Appellant/A2

Versus

State by the Inspector of Police,

T-9, Pattabiram Police Station,

Chennai.

(Crime No.160/2016)

... Respondent/Complainant

Prayer: Criminal Appeal filed under Section 374(2) of Cr.P.C.

praying to call for the entire records in connection with the

C.C.No.59/2016 on the file of the learned Principal Special

Court under NDPS Act, Chennai and set aside the judgment dated

04.06.2018.

For Appellant

: Mr.D.Mario Johnson

(Counsel appointed through Legal Aid)

For Respondent : Mr.S.Udaya Kumar

Government Advocate (Crl. Side)

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 appe