Suspended sentence for porters in NDPS case due to non-arrest of principal offender A6 and prolonged incarceration pending appeal.

ORDER

The petitioners are accused Nos.3 to 5 in CC.No.23 of 2020 on the file of the learned Additional District Judge, Special Court for Essential Commodities Act, Thanjavur. They were arrested on 13.02.2020 along with A1 and A2 with 661.5 kgs of ganja. They have been prosecuted for the offence under Section 8(c) r/w 20 (b)(ii)(C), 28 and 29 of the NDPS Act. By the judgment dated 28.05.2024 the petitioners were found guilty, convicted for the offence under Sections 8(c) r/w 20(b)(ii)(C) r/w 28 and 29 of NDPS Act and sentenced to undergo 20 years rigorous imprisonment with a fine of Rs.1,00,000/- in default to undergo three years rigorous imprisonment. As against the conviction and sentence imposed by the trial Court, these petitioners have filed an appeal before this Court in Crl.A(MD) No.578 of 2024 and the same has been admitted by this Court. The earlier application filed by the petitioners to suspend the sentence has been dismissed as withdrawn. This is the second application filed to suspend the sentence.

2.The case of the prosecution is that A1 and A2, who were dealing with ganja have transported 661.5kgs of ganja from the State of Andhra Pradesh in a truck bearing registration No.TN 03 Z 1618 to Vedaranyam in order to deliver the same to A6. The petitioners / A3 to A5 have unloaded the substances from the vehicle on the instructions of A6. Since they have been arrested along with contraband and A1 and A2, they have been prosecuted.

3.The learned counsel appearing for the petitioners submits that the petitioners are porters attached to Sumai Thookum Thozhilar Sangam, Vedaranyam. A3 was instructed by A6 to go the place of occurrence and off-load the goods from the truck bearing registration No.TN 03 Z1618. A3 was also instructed by A6 to take two more persons and therefore, A3 has taken his friends/ A4 and A5 along with him for off-loading the goods from the truck. At that time the respondent police surrounded the vehicle, arrested them and has prosecuted the petitioners along with A1 and A2. He further submits that the case of the prosecution is that this contraband has been transported from Andhra Pradesh, in order to deliver the same to A6. However this A6 has not been secured by the respondent police till the end of the trial and even now and therefore, the prosecution was laid as against A1 to A5.

4.According to the learned counsel, the petitioners are in jail from the date of their arrest for more than 6 years and 3 months. He further submits that the goods were fully covered, the petitioners were not aware of the contents of the goods and that they were simply unloading them from the truck. They are not having any nexus to the offence, committed by A1, A2 and A6. The learned counsel also claims that the petitioners are in no way connected with A1, A2 and A6.

5.The learned Special Public Prosecutor appearing for the respondent submits that the petitioners were arrested with A1 and A2 and along with contraband of 661.5 kgs of ganja. This ganja was transported from Andhra Pradesh. Admittedly it has been transported by A1 and A2. Further the call details expose that they were present at Andhra Pradesh on 06.02.2020. Apart from that, A3 had also contacted A6 to mobile No. 9677745717 on 12.02.2020, ie., on the date of seizure. He had denied the contention of the learned counsel for the petitioners that the contraband was sealed and covered in paper and they were not aware of the contents and it cannot be justified, based on the statement of PW2 that when the door of the vehicle is opened, a pungent smel