Crl.M.P.No.755 of 2023 in Crl.A.No.282 of 2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 24.01.2023

PRONOUNCED ON : 13.02.2023

CORAM

THE HONOURABLE MR. JUSTICE V.SIVAGNANAM

Crl.M.P.No.755 of 2023

in

Crl.A.No.282 of 2021

Somu Muthiah

... Petitioner

Vs.

The State, represented by

The Inspector of Police,

NIBCID, Coimbatore

(crime No.202 of 2019)

... Respondent

PRAYER: Criminal Appeal filed under Section 389(1) of Cr.P.C. to

suspend the sentence of imprisonment imposed in C.C.No.40 of 2020 on the

file of the Special Court for NDPS Coimbatore, pending disposal of the

Criminal Appeal No.282 of 2021 on the file of this Court.

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Crl.M.P.No.755 of 2023 in Crl.A.No.282 of 2021

For Petitioner

: Mr. V.K. Sathyamoorthy

for Mr. S.Jayaprakash

For Respondent

: Mr. C.E.Pratap,

Government Advocate (crl.side)

O R D E R

The petitioner, who is the sole accused in C.C.No.40 of 2020 on the

file of the Special Court under EC Act/ NDPS Act, Coimbatore, seeks

suspension of his sentence of imprisonment.

2. Trial Court, by judgment dated 24.03.2021, convicted the

petitioner for the offence under Section 8(c) r/w. 20(b)(ii)(C) of Narcotic

Drugs and Psychotropic Substances Act 1985 and sentenced him to

undergo ten years of Rigorous Imprisonment and to pay a fine of

Rs.1,00,000/-, in default, to undergo Rigorous Imprisonment for six months.

3. Challenging the conviction and sentence slapped by the Trial

Court, the petitioner is before this Court.

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Crl.M.P.No.755 of 2023 in Crl.A.No.282 of 2021

4. The learned counsel for the petitioner submitted that the petitioner

is convicted for the offence under Section 8(c) r/w.20(b)(ii)(C) of Narcotic

Drugs and Psychotropic Substance Act 1985 with 10 years Rigorous

Imprisonment and to pay a fine of Rs.1,00,000/-, in default, 6 months

Rigorous Imprisonment. Now, the petitioner is in jail from 24.12.2019. In

this case, there is a clear violation of rules framed for NIB officers by the

NCB Board with regard to the procedure of contraband seized by the police

officials. Further, the confession recorded by the Police Officer is

inadmissible as per the decision of the Apex Court in Toofan's Case.

Further, there is a doubt about the place of occurrence. The prosecution

failed to establish with regard to the recovery of the articles and the safe

custody of the said articles from 24.12.2019 to 06.01.2020 and there is a

fair chance of success in the appeal. Hence, pleaded to suspend the sentence

of imprisonment imposed in C.C.No.40 of 2020 on the file of the Special

Court for NDPS , Coimbatore, pending disposal of this Criminal Appeal.

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Crl.M.P.No.755 of 2023 in Crl.A.No.282 of 2021

5. When the matter is taken up, the learned Government Advocate

(crl. side) vehemently opposed to suspend the sentence imposed by the Trial

Court on the ground that the prosecution established the charge against the

accused with sufficient evidence. From the accused 24.000 grams of Ganjas

have been recovered and its being serious nature of offence and the charge

has been proved beyond reasonable doubt. The trial Court, based upon the

evidence, convicted the accused and there is no ground to suspend the

sentence till the disposal of the appeal.

6. I have considered the matter in the light of the submissions made

by the learned counsel on either side and perused the impugned order and

the materials on record.

7. The prosecution case is that on 24.12.2019 at about 12.35 hours at

the back gate entrance of the railway station, Good shed road, Coimbatore,

the accused was found to be in unlawful possession of 24.000 kgms of

ganja, which was seized and the case has been registered against him in

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