Crl.A(MD)No.304 of 2016

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Date : 27.04.2023

CORAM:

THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

Crl.A.(MD)No.304 of 2016

1.Maharajan

2.K.Eswaran

... Appellants/A1 and A2

vs.

State Rep. by

The Inspector of Police,

Cumbum North Police Station,

Theni District.

Crime No.48 of 2014 ... Respondent/Complainant

PRAYER : This Criminal Appeal has been filed under Section 374

Cr.P.C., to call for the records in C.C.No.63 of 2014 dated 05.08.2016 on

the file of the learned II Additional Special Sessions Judge (NDPS Act

Cases) Madurai and set aside the same.

For Appellants : Mr.M.Jegadeesh Pandian

For Respondent : Mr.T.Senthilkumar

Additional Public Prosecutor

JUDGMENT

This Criminal Appeal is filed against the order passed in C.C.No.

63 of 2014 on the file of the learned II Additional Special Sessions Judge

(NDPS Act Cases) Madurai, dated 05.08.2016.

1/14

https://www.mhc.tn.gov.in/judis

Crl.A(MD)No.304 of 2016

2.The case of the prosecution is that on receipt of secret

information on 12.02.2014 at about 11.00 a.m., the Sub-Inspector of

Police obtained permission from the Station House Officer and went to

the place of occurrence along with the informant and team. When they

were on surveillance at about 12.00 noon, the first appellant/A1 was

carrying white colour gunny bag along with the second appellant. After

identification by the informant and by following the procedures laid

down under Section 50 of NDPS Act, they made search on the first

appellant/A1 and on his consent, he handed over the white colour gunny

bag to the respondent. On verification, they found 5 kgs of Ganja from

the first appellant/A1. After taking samples, the appellants were brought

to the police station and registered the First Information Report in Crime

No.48 of 2014 against them for the offence punishable under Sections

8(c) r/w 20(b)(ii)(B) of NDPS Act. Thereafter, they were produced before

the Court along with the contraband and they were remanded to judicial

custody. After completion of investigation, the respondent police filed a

final report and the same has been taken cognizance in C.C.No.63 of

2014, on the file of the learned II Additional Special Sessions Judge

(NDPS Act Cases), Madurai.

2/14

https://www.mhc.tn.gov.in/judis

Crl.A(MD)No.304 of 2016

3.On the side of the prosecution, they had examined P.W.1 to P.W.4

and exhibited 11 documents as Ex.P.1 to Ex.P.10 and marked 2 material

objects as M.O.1 and M.O.2. On the side of the appellants, no one was

examined and no documents were exhibited.

4.On perusal of the oral and documentary evidence, the trial Court

found that the appellants guilty for the offence under Sections 8(c) r/w

20(b)(ii)(B) of NDPS Act and sentenced them to undergo 7 years

Rigorous Imprisonment and to pay a fine of Rs.25,000/- each, in default

to undergo one year Simple Imprisonment. Aggrieved by the same, the

present appeal has been filed.

5.The learned counsel for the appellants would submit that the

respondent has failed to follow the procedures as contemplated under

Section 42 of the NDPS Act. Even according to the prosecution, both the

appellants were served with search memo and not obtained separate

consent search letter. Therefore, it is clear one of the procedures let out

under Section 42 of the NDPS Act. Further, the respondent has also

failed to follow the procedures let out under Section 50 of the NDPS Act.

The search memo and also the consent letter were typed by the

respondent and obtained signature from both the appellants. Therefore, a

3/14

https://www.mhc.tn.gov.in/judis

Crl.A(MD)No.304 of 2016

false case has been foisted against the appellants. There were

contradictions between the evidence of P.W.3 and P.W4. There was no

corroboration between their evidence in respect of arrest of the police.

Therefore, the prosecution has failed to pr