IN THE HIGH COURT OF JUDICATURE AT MADRAS

Date of Reserving Judgment

20.08.2018

Date of pronouncing Judgment

14.11.2019

CORAM

THE HONOURABLE MR. JUSTICE P.VELMURUGAN

Crl.A.No.570 of 2014

and

M.P.No.1 of 2015

Senthil Kumar

... Appellant

Versus

The Assistant Commissioner of Customs

Prosecution Unit (Air)

New Customs House

Chennai – 600 027.

... Respondent

Appeal filed u/s.374 (2) of Cr.P.C. against the Judgment of

conviction and sentence passed by the learned Principal Special

Judge for NDPS Act Cases, Chennai, in C.C.No.25 of 2014 dated

05.09.2014.

For Appellant

:

Mr.M.Ramesh

For Respondent :

No appearance

Judgment

The respondent (Customs) registered a case against the

appellant for the offence under sections 8(c) r/w.22 (c) of NDPS

Act and after investigation, the respondent (Customs) laid a

private complaint before the Special Court for NDPS Cases in

R.R. No.23 of 2013 in O.S.No.57 of 2013 - INT and the learned

Special Judge, after taking the complaint on file in C.C.No.25

of 2014 and after completing the formalities, framed charges

against the appellant for the offences under sections 8(c)

r/w.22 (c) of NDPS Act.

2.

Subsequently, in order to prove the case of

prosecution, during the trial, on the side of prosecution, as

many as 3 witnesses were examined as PW.1 to PW.3 and 17

documents were marked as Exs.P1 to P17, besides 4 Material

Objects.

https://hcservices.ecourts.gov.in/hcservices/

3.

After completing the prosecution witnesses, when

incriminating circumstances culled out from the evidence of

prosecution witnesses were put before the accused/appellant, he

denied as false. On the side of defence, no oral and

documentary evidence was produced.

4.

After completing the trial and hearing the arguments

advanced on either side and perusing the oral and documentary

evidences, the learned Special Judge has come to the conclusion

that the accused/appellant is guilty for the offence under

sections 8(c) r/w.22 (c) of NDPS Act and convicted him for the

above said offence and sentenced him to undergo 10 years

rigorous imprisonment and to pay a fine of Rs.1,00,000/-, in

default to remit the fine amount, the accused to undergo six

months rigorous imprisonment.

5.

Challenging the said judgment of conviction passed by

the learned Special Judge, the convict has preferred the present

appeal before this Court.

6.

The learned counsel for the appellant would submit that

based on the evidence of PW.1 alone, the trial Court has

convicted the appellant and that even there is no independent

witness examined in this case, when the alleged offence taken

place in the airport. Though the case of the prosecution is

that on information received by the Superintendent of Customs

Officials, they intercepted the appellant. The alleged

information received from the informer has not been reduced into

writing under Section 42 of the NDPS Act, which is violation of

the mandatory provisions of the said Act. The respondent did

not explain the right of the appellant as per Section 50 of the

NDPS Act and therefore, the seizure and arrest itself is very

doubtful and the violation of mandatory provisions of Section 50

of the NDPS Act is fatal to the case of the prosecution. As per

the provisions of the Act, the appellant should have been

searched before the Gazetted Officer of Customs or the

Magistrate. Though the prosecution has stated that the

appellant was searched before the Superintendent of Customs

(Gazetted Officer) and seized the contraband, the above officer

was not shown as prosecution witness. The said Superintendent

was neither cited as witness nor examined as prosecution

witness. The prosecution has not proved its case beyond

reasonable doubt and the mandatory provisions of the NDPS Act,

viz., Sections 42, 50 and 57 have not been duly complied with