Allowed

Pandi v. The Inspector of Police

Madras HC5 Nov 2025CRL A(MD)/932/2023

Case brief

AI extract

What is this about?

Appeal against conviction for possessing 48 kg ganja under the NDPS Act. The court found the sole police witness unreliable, the accused's signature absent from key recovery documents, conscious possession unproved, and an unexplained nine-day delay in producing contraband, and acquitted the appellant.

What did the court decide?

Conviction and sentence set aside; appellant acquitted of all charges; fine refunded forthwith; bail bond cancelled.

Pandi Vs The Inspector of Police — Narcotics (NDPS) | Madras HC (2025)

¶1

Crl.A.(MD).No.932 of 2023

¶2

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

¶3

Reserved on : 12.09.2025 Pronounced On : 05.11.2025

¶4

CORAM

¶5

THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN

¶6

Crl.A.(MD).No.932 of 2023

Pandi

... Appellant

Vs.

State rep by The Inspector of Police, NIB-CID, Dindigul (Crime No.47 of 2013) ... Respondent

¶11

PRAYER: Criminal Appeal has been filed under Section 374 (2) of Criminal Procedure Code, to call for the records pertaining to the judgment of conviction and sentence passed by the learned II Additional Special Court for NDPS Cases, Madurai in C.C.No.76 of 2016 dated 13.09.2023.

¶12

For appellant : Mr.C.Jeganathan For respondent : Mr.R.Meenakshi Sundaram Additional Public Prosecutor

¶13

1/27

¶14

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

¶15

Crl.A.(MD).No.932 of 2023

¶16

JUDGMENT

¶17

The accused in C.C.No.76 of 2016 on the file of the II Additional

¶18

Special Court for NDPS Act Cases, Madurai, has filed this Criminal Appeal before this Court challenging the conviction and sentence passed against him by the impugned judgment dated 13.09.2023. The conviction and sentence is as follows:

¶19

Conviction for the Offence under Sentence of Imprisonment Section 8(c) r/w 20(b)(ii)(C) of the NDPS 12 years R.I and to pay a fine Act of Rs.1,00,000/- in default to undergo 24 months S.I

¶20

On 09.07.2013 at 10.00 am deceased Murugesan who was

¶21

working as Special Sub-Inspector of Police, Dindigul NIB Police Unit had received secret information about the illicit transit of huge quantity of “Ganja” from Madurai to Nilakottai. He recorded the said information and reduced in writing under Ex.P.5 and informed to his superior P.W.2 and he along with informant, PW.1 and other Police Officers went to the occurrence place at Nilakottai. Informant identified the Appellant who had been carrying two bags and he was intercepted by the deceased Murugesan, Search Officer and PW.1 and

¶22

2/27

¶23

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

¶24

Crl.A.(MD).No.932 of 2023

¶25

other Police Officers. After complying the formalities prescribed Under Section 50 of NDPS Act, deceased Murugesan, Search Officer had made search and found that the two bags which had been carried by the Appellant contained Ganja. Thereafter, appellant gave confession about the posession of the Ganja and further disclosed that he purchased from A2-(Aandi). Deceased Murugesan, Search Officer, in pursuance of the confession, recovered the contraband in two bags and weighed the contraband and found that each bag contained 24-Kg of Ganga. He took two samples weighing 25-gm from each bag and properly sealed and also properly packed the remaining contraband and sealed the same. Thereafter, the Search Officer arrested the accused and brought him to the Police Station and registered the case in Crime No.47 of 2013 U/s.8(c) r/w 20(b)(ii)(C) NDPS Act. Subsequently, he had submitted detailed report under Section 57 of the NDPS Act to PW.2 and remanded the accused on the same day along with remaining contraband, samples and material documents. PW.2 had continued the investigation and arrested A2 and examined number of witnesses and obtained the Chemical Analysis Report and filed final report before the Learned Special Judge NDPS Act, Madurai

¶26

3/27

¶27

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

¶28

Crl.A.(MD).No.932 of 2023

¶29

and same was taken on file in C.C.No.76 of 2016 U/s.8(c) r/w 20(b)(ii)

¶30

¶31

After appearance of the accused, copies of records were furnished to them under section 207 Cr.P.C. The Learned trial Judge on perusal of records and on hearing both sides and on being satisfied that there existed a prima facie case against the accused/appellant, framed charges under Sections 8(c) r/w 20(b)(ii)(C) of the NDPS Act, 1985, r/w 34 IPC and the same was read over and explained to them and on being questioned, the accused/appellants denied the charges and pleaded not guilty and stood for trial.

¶32

The prosecution in order to prove its case, had examined 2

¶33

witnesses as P.W.1 and P.W.2 and exhibited 12 documents as Ex.P.1 to Ex.P.12 and marked six material objects M.O.1 to M.O. 6

¶34

When the accused were examined under Section 313 (1) (b)

¶35

Cr.P.C with regard to the incriminating materials available against them from the evidence of prosecution, they denied the evidence as

¶36

4/27

¶37

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

¶38

Crl.A.(MD).No.932 of 2023

¶39

false and further stated that a false case was foisted against them. The accused neither produced any documents nor examined any witness on their side.

¶40

6.The learned Trial Judge, considering the materials and circumstances found that accused No.1 namely Appellant herein in C.C.No.76 of 2016 was guilty U/s.8(c) r/w 20(b)(ii)(C) NDPS Act and passed the conviction and sentenced him to undergo 12 years of Rigorous Imprisonment and to pay a fine of Rs.1,00,000/- in default to undergo further 24 months of Simple Imprisonment. The Learned Trial Judge acquitted A2. The appellant challenging the conviction and sentence of imprisonment has filed this appeal .

¶41

: 7.The submission of the Learned Counsel for the Appellant

¶42

The learned counsel for the appellant would submit that there was no evidence available on record to show that the accused was carrying two bags of contraband or he was found in conscious possession of two bags of Ganja. The only piece of evidence is the evidence of P.W.1 who would say that the bags were found on the

¶43

5/27

¶44

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

¶45

Crl.A.(MD).No.932 of 2023

¶46

main road when the appellant was standing and there was no circumstances available to prove the actual possession of the contraband by the appellant. Therefore, the conscious possession by the appellant is not proved. Therefore, he seeks to acquit the appellant.

¶47

7.1.The learned counsel for the appellant would further submit that according to the prosecution, the deceased Murugesan , SSI had received the secret information and reduced the same in writing under Ex.P4 and Ex.P5. The SSI expired. Hence, it is the duty of the prosecution to prove the signature of the deceased/Murugesan in the material exhibits. The prosecution examined two witnesses. Both witnesses never deposed about the signature of the deceased Murugesan. When the accused faces a trial with harsh punishment, it is the duty of the prosecution to prove the basic requirements, namely, conscious possession and compliance of mandatory requirement as per Section 42 of the NDPS Act, 1985. It is the duty of the prosecution to produce the document and prove the document as per law and the same has not been done in this case. Therefore, he seeks to acquit the accused on the ground of non-compliance of Section 42 of the NDPS

¶48

6/27

¶49

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

¶50

Crl.A.(MD).No.932 of 2023

¶51

Act, 1985. The learned counsel for the appellant would also submit that there was an unexplained delay of 9 days in producing the contraband before Court below. The accused was remanded without production of contraband. The learned Judicial Magistrate also recorded the same in form 91 and the same has also been admitted by P.W.2 and the safe custody of the contraband is also not established. Therefore, the learned counsel for the appellant would submit that there was doubt over the recovery of the contraband from the accused. He would also submit that the accused's presence has not been proved on the ground that the recovery mahazar (Athachi) and the arrest memo, do not contain the signature of the accused. He would further say that in murder cases, the recovery is made on the basis of disclosure statement of the accused recorded under Section 27 of the Indian Evidence Act. In that case the conviction is not based on the basis of the recovery alone. But, in this case, conviction was passed only on the basis of the possession. Hence, he seeks to appreciate the said material to acquit the appellant.

¶52

7/27

¶53

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

¶54

Crl.A.(MD).No.932 of 2023

¶55

¶56

8. Submission of the learned Additional Public Prosecutor:

¶57

The learned Additional Public Prosecutor, on going through the

¶58

records and also the impugned judgment would submit that the signature in the Athachi, arrest memo is not material when his signature is found in the consent letter and other documents. Therefore, the said omission is not a material omission to disbelieve the evidence of P.W.1.

¶59

8.1.The learned Additional Public Prosecutor also would submit

¶60

that there was no bar to convict the accused on the basis of the evidence of sole witness when his evidence is reliable and trustworthy. According to the learned Additional Public Prosecutor his evidence comes under the first category of the evidence laid down by the Hon'ble Supreme Court in the case of Vadivelu Thevar vs. State of Tamilnadu reported in 1957 SCC OnLine SC 13 . The learned Additional Public Prosecutor also would submit that compliance of Section 42 of the NDPS Act, was clearly deposed by P.W.1 and P.W.2 and document was marked without objection and hence, the absence of the proof of signature of the deceased Murugesan, namely, the

¶61

8/27

¶62

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

¶63

Crl.A.(MD).No.932 of 2023

¶64

Search Officer is not fatal to the prosecution. More particularly, Ex.P5 was marked and P.W.2 deposed about the receipt of the said information. The learned Additional Public Prosecutor would also submit that the prosecution has proved the case by examining P.W.1 and P.W.2 and through the documents. Therefore, he seeks to confirm the impugned judgment.

¶65

9.This Court considered the rival submissions made by the learned counsel appearing for the appellant and the learned Additional Public Prosecutor and perused the materials available on record and the precedents relied upon by them.

¶66

10.The question in this case is whether the prosecution has established the case beyond reasonable doubt against the appellants and whether the conviction and sentence passed against the appellant can be sustained or not?

¶67

9/27

¶68

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

¶69

Crl.A.(MD).No.932 of 2023

¶70

11 .Discussion:

¶71

Prosecution alleged that the appellant was found in possession of huge quantity of “Ganja” and therefore, it is duty of the prosecution to prove the foundational facts namely conscious possession and the compliance of the mandatory requirement as per the NDPS Act beyond reasonable doubt so as to attract the rigours of Sections 35 and 54 of the Act and the Hon'ble Supreme Court has reiterated the said requirement in view of the stringent provisions of the NDPS Act, such as Section 37, the minimum sentence of 10 years, and absence of any provision for remission in the following cases:

¶72

11.1. In the case of Noor Aga v. State of Punjab [Noor Aga v. State of Punjab, reported in (2008) 16 SCC 417, the Hon'ble Supreme Court has held as follows:

¶73

“58. …If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established.

¶74

59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of

¶75

10/27

¶76

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

¶77

Crl.A.(MD).No.932 of 2023

¶78

the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt.”

¶79

11.3. In the case of Gangadhar v. State of M.P. , reported in

¶80

(2020) 9 SCC 202 the Hon'ble Supreme Court has held as follows:

¶81

8. The presumption against the accused of culpability under Section 35, and under Section 54 of the Act to explain possession satisfactorily, are rebuttable. It does not dispense with the obligation of the prosecution to prove the charge beyond all reasonable doubt. The presumptive provision with reverse burden of proof, does not sanction conviction on basis of preponderance of probability. Section 35(2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability.

¶82

10. The stringent provisions of the NDPS Act, such as Section 37, the minimum sentence of 10 years, absence of any provision for remission do not dispense with the requirements of prosecution to establish a prima facie case beyond reasonable doubt after investigation, only whereafter which the burden of proof shall shift to the accused. The gravity of the sentence and the stringency of the provisions will therefore call for a

¶83

11/27

¶84

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

¶85

Crl.A.(MD).No.932 of 2023

¶86

heightened scrutiny of the evidence for establishment of foundational facts by the prosecution.

¶87

11.4. In the case of Gopal V. State of M.P ., reported in 2002 9

¶88

SCC 595 the Hon'ble Supreme Court has held as follows:

¶89

6....In the face of this evidence, it is not possible to hold that the appellant could be said to be in conscious possession of the contraband. Both the courts below have allowed surmises and conjectures to take the place of proof. That cannot be done. The possibility that the appellant has been roped in due to misguided suspicion cannot be ruled out...

¶90

11.5. Balwinder Singh v. Narcotics Control Bureau, (2024) 13

¶91

SCC 734 the Hon'ble Supreme Court has held as follows:

¶92

25... Emphasis was laid on the well-settled principle of criminal jurisprudence that more serious the offence, the stricter would be the degree of proof and a higher degree of assurance would be necessary to convict an accused.

¶93

26. Thus, it can be seen that the initial burden is cast on the prosecution to establish the essential factors on which its case is premised. After the prosecution discharges the said burden, the onus shifts to the accused to prove his innocence. However, the

¶94

12/27

¶95

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

¶96

Crl.A.(MD).No.932 of 2023

¶97

standard of proof required for the accused to prove his innocence, is not pegged as high as expected of the prosecution. The essence of the discussion in the captioned case was that for attracting the provisions of Section 54 of the NDPS Act, it is essential for the prosecution to establish the element of possession of contraband by the accused for the burden to shift to the accused to prove his innocence. This aspect of possession of the contraband has to be proved by the prosecution beyond reasonable doubt.

¶98

12.This case rests upon the sole evidence of the police witness PW.1. As per the judgement of the Hon'ble Constitution Bench of the Supreme Court in the case of Mukesh Singh Vs. State (Narcotic Branch of Delhi) reported in (2020) 10 SCC 120, there is no necessity to examine independent witnesses and there is no bar to record the conviction on the evidence of the police officers. The Police officer's evidence can be relied without corroboration of the independent witnesses if their evidence is unimpeachable.

¶99

13.It is also well settled principle that there is no bar to record conviction on the basis of the testimony of the sole witness if it is

¶100

13/27

¶101

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

¶102

Crl.A.(MD).No.932 of 2023

¶103

reliable and trustworthy and if comes under the parameter of the

¶104

“ reliable witness” as stated by the Hon'ble Supreme Court in the

¶105

case of Vadivel Thevar Vs. State of Tamilnadu reported in AIR 1957 SC 614.

¶106

14. The Hon'ble Supreme Court has devided the testimony of the sole witness in three categories and laid the following three principles in the case of Vadivel Thevar Vs. State of Tamilnadu reported in AIR 1957 SC 614:-

¶107

(1) Wholly reliable.

¶108

(2) Wholly unreliable.

¶109

(3) Neither wholly reliable nor wholly unreliable.

¶110

14.1 In the case of wholly reliable witness conviction can be

¶111

recorded and in the other cases of

¶112

“ Wholly unreliable” and “Neither wholly reliable nor wholly unreliable” witnesses a different yardstick is provided. Therefore, it is the duty of this court to find out whether the evidence of P.W.1 comes under the category of “ Wholly reliable”, “Wholly unreliable” or “Neither

¶113

14/27

¶114

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

¶115

Crl.A.(MD).No.932 of 2023

¶116

wholly reliable nor wholly unreliable witness”.

¶117

14.2. As per the law laid down by the Hon'ble Supreme Court,

¶118

the evidence of P.W.1 does not come under the category of “wholly reliable testimony”. Here, in this case, there are number of infirmities and inconsistencies in the evidence of P.W.1 such as:

¶119

(i) he has not disclosed about the vehicle in which they went to the scene of occurrence situated 65 km away from Police Station;

¶120

(ii) he has not stated about “Dry Ganja” in the recovery mahazar;

¶121

(iii)he has not stated about the usage of the weighing scale to weigh the contraband;

¶122

(iv) he did not have knowledge about computer print form namely Arrest Memo, Consent Letter, Recovery Mahazar and Inspection Report;

¶123

(v) he admitted that there was no referrence about the S1 to S4 and P1 and P2 in the recovery mahazar;

¶124

(vi) he also admitted that there is no referrence about the weight

¶125

of two bags and seal particulars and more particularly he had not

¶126

15/27

¶127

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

¶128

Crl.A.(MD).No.932 of 2023

¶129

signed athachi with date;

¶130

(vii) there is no plausible explanations to how they arrived to the

¶131

place of the occurrence, namely, opposite to Thamiyan hospital Old Age Home, on Nilakottai to Anaipatti Road when there was no clear mentioning about actual place of the occurrance in the secret information recorded under Ex.P.5 and

¶132

(viii) he did not depose about the signature of the deceased Murugesan, Search Officer in Ex.P.2, Ex.P.3 and Ex.P.5.

¶133

15.In this case, the material witness namely the Search Officer, Mr.Murugesan, Special Sub-Inspector of Police died. If he is alive his evidence is material to prove the compliance of the Section 42 of NDPS Act and recovery of the contraband.

¶134

16.In the absence of his evidence, to prove the recovery of contraband from the appellant, it is duty of the prosecution to examine the other police officers who had accompanied PW.1. The said corrobaration is not normally required in ordinary case. But, in this case recovery of 48Kg of “Ganja” was made from the Appellant

¶135

16/27

¶136

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

¶137

Crl.A.(MD).No.932 of 2023

¶138

and also he is said to have been standing with two bags of weighing

¶139

48Kg of “Ganja” opposite to the “Nilakottai Thamin Hospital Oldage Home” situated in the Nilakottai to Anaipatti Road and the deceased Search Officer made recovery of two bags of “Ganja” under the recovery mahazar Ex.P.2 (Athachi). In the said recovery mahazar, signature of the Appellant is conspicuously not found. This is the material document to prove the presence of the accused in the scene of occurrence and the recovery of the contraband. In the case of the Murder cases, normally the recovery is proved through the examination of the Village Administrative Officer on the basis of the disclosure statement made U/s.27 of Evidence Act. In these types of cases, absence of the signature of the accused has no significance and conviction need not be passed on the basis of the recovery alone. But, under the NDPS Act, possession itself is offence and recovery of the contraband itself is a material circumstance which casts reverse burden on the accused U/s.54 & 35 of the NDPS Act and hence recovery mahazar is the basic document to prove the recovery from the accused. Therefore, this court holds that signature of the accused in the recovery mahazar to prove his presence with contraband and

¶140

17/27

¶141

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

¶142

Crl.A.(MD).No.932 of 2023

¶143

recovery of the contraband from him is necessary unless prosecution established that accused refused to sign the recovery mahazar.

¶144

17.In this case, Ex.P.2 recovery mahazar did not contain the signature of the Appellant and also Arrest Memo Ex.P.3 and there is no plausible explanation either from PW.1 or from PW.2 for such absence of singature. Even there is no explanation in the 57 report submitted by the deceased Search Officer to PW.2 to show that the accused refused to sign the recovery mahazar. This Court also is unable to accept the argument of the Learned Additional Public Prosecutor that the said omission is not material when the signature of the accused was found in the consent letter which was prepared U/s. 50 of the NDPS Act for the reason that even according to the Learned Additional Public Prosecutor section 50 is not applicable to the present case. Each fact is to be proved as per Section 3 of the Evidence Act. More particularly, in this type of harsh punishment case, each material fact has to be proved by the prosecution indenpendently without basing on the other immaterial documents either collected or prepared. All the documents are in printed form and signature was

¶145

18/27

¶146

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

¶147

Crl.A.(MD).No.932 of 2023

¶148

found in the immaterial documents and signature was not found in

¶149

the material document. Any casual omission is not material but omissions which are material has to be explained in the contemporaneous document then and there. There is no such explanation. There are occassions where the searching officers would have expired and in those circumstances, it is the duty of the prosecution to prove the documents prepared by the said deceased witness through other means, namely, by examining other witnesses who accompanied the said deceased witness and identify the documents prepared by the said deceased witness. But in this case the prosecution has not taken such efforts to prove Ex.P2 and Ex.P3. Hence, this Court holds that the prosecution failed to prove the prosecution and recovery.

¶150

18.The non-examination of the independent witnesses is not fatal to the prosecution as per the law laid down by the Hon'ble Supreme Court in Mukesh Singh Vs. State (Narcotic Branch of Delhi) reported in (2020) 10 SCC 120. But, the non-examination of the police witnesses to substantiate the proof of recovery and possession is a

¶151

19/27

¶152

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

¶153

Crl.A.(MD).No.932 of 2023

¶154

serious lapse. The NDPS Act provides harsh punishment. Therefore,

¶155

the prosecution ought to have proved the recovery beyond reasonable doubt by examining the material witnesses. The non-examination of the other police witnesses, in view of the death of the Search Officer is fatal to the prosecution. To convict the accused under 8(c) r/w 20(b) (ii)(C) of the NDPS Act, 1985, r/w 34 IP C of the NDPS Act, there is heavy burden on the prosecution to prove the possession. According to the learned Additional Public Prosecutor, except P.W.1, no other witnesses have been examined to prove the recovery, for taking of samples, for arrest of the accused and for production of the accused before the immediate superior.

¶156

19.There are two versons about the recovery of the contraband. In Ex.P3 it is stated that the contraband recovered from the hands of the appellant ie., “jftyhsp Rl;b fhlba jpirapy; jfJ ifapy ; ; nts;is epw ,uz;L gpsh];bf; rhf;FigAld; te;j egiug; gpbj;J jftyhsp milahsk; fhl;ba gFjpapy; ghh;f;Fk;NghJ jdpegh ; xUth; epd;W nfhz;bUe;jhh;. mtUf;F Kd;dhy; ,uz;L nts;is ” rhf;F %l;ilfs; ,Ue;jJ .

¶157

20/27

¶158

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

¶159

Crl.A.(MD).No.932 of 2023

¶160

20. One of the version that the appellant carried 48 kg ganja in his hand in two bags on the main road is both humanly impossible

¶161

and improbable. The said version is nto supported with material evidence.

¶162

20.1. P.W.1 in his evidence stated that two bags containing contraband were lying where the accused was standing.There is no clear evidence about the conscious possession by the appellant. There

¶163

was no material adduced to prove the actual physical control and custody of the contraband by the accused. The contraband was lying on the road where the accused was standing. But the prosecution has not proved the nexus between the accused and the contraband. The Hon'ble Supreme Court in the case of Mohan Lal v. State of Rajasthan, reported in (2015) 6 SCC 222 has emphasised the strict proof of actual possession to record the conviction and the relevant paragraph is as follows:

¶164

11. When one conceives of possession, it appears in the strict sense that the concept of possession is basically connected to “actus of physical control and custody”. Attributing this

¶165

21/27

¶166

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

¶167

Crl.A.(MD).No.932 of 2023

¶168

meaning in the strict sense would be understanding the factum of possession in a narrow sense. With the passage of time there has been a gradual widening of the concept and the quintessential meaning of the word “possession”. The classical theory of the English law on the term “possession” is fundamentally dominated by Savigny-ian “corpus” and “animus” doctrine. Distinction has also been made in “possession in fact” and “possession in law” and sometimes between “corporeal possession” and “possession of right” which is called “incorporeal possession”. Thus, there is a degree of flexibility in the use of the said term and that is why the word “possession” can be usefully d efined and understood with reference to the contextual purpose for the said expression. The word “possession” may have one meaning in one connection and another meaning in another.

¶169

21.The recovery was made in the open place and there was no strong material to record a finding of the conscious possession by the appellant. The contraband was found on the main road and there was no connecting evidence to link the accused's possession. Without any concrete material atleast to presume the possession of the contraband by the accused, this Court holds that the prosecution failed to prove the appellant's conscious possession of the contraband. It is settled 22/27

¶170

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

¶171

Crl.A.(MD).No.932 of 2023

¶172

principle that conviction cannot be recorded on surmise and suspicion. The Court cannot act on the suspicion however grave without any strict proof of possession. More particularly, in this type of the reverse burden cases with stringent punishment, the Court cannot act on the suspicion. In view of the above discussion, the prosecution miserably failed to prove the conscious possession of the contraband by the appellant.

¶173

22. Yet another material infirmity in the prosecution case to doubt the recovery is that there was an unexplained delay of 9 days in producing the contrband before the competent Court. According to the prosecution, the recovery was made on 09.07.2013 and the same was produced before the Court only after eight days and the same was also admitted by P.W.2 and the relevant evidence is as follows:

¶174

“ ePjpkd;wj;jpy; 17.07.2013 md;W xg;gilf;fg;gl;L tof;F Mtzq;fs; tug;glhj fhuzj;jhy; jpUg;gg;gl;L kPz;Lk; 19.07.2013 md;W gbtk; 95d; %yk; nrhj;Jf;fs ; xg;gilg;G nra;ag;gl;Ls;sJ. mJ tiu nrhj;Jf;fs; ahh ; ghJfhg;gpy; ,Ue;jJ vd;gJ njhlh;ghf Mtzq;fs; vJTk ; jhf;fy; nra;atpy;iy vd;why; rhpjhd;. ”

¶175

23/27

¶176

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

¶177

Crl.A.(MD).No.932 of 2023

¶178

23. In most of the cases, this Court has rejected the argument of

¶179

the counsel raising doubt over the recovery on the delay of the production before the learned Special Court upon the perusal of the Form-95, which contained the particulars about the production of the contraband at the time of the remand along with the accused. But, in this case, the learned Judicial Magistrate at the time of remand itself stated that the contraband was not produced and made the following endorsement and the same has also been admitted by P.W.1 in Ex.P9

¶180

“Property not produced. Produced with property before proper Court”.

¶181

24.Therefore, this Court entertains reasonable suspicion over the recovery of contrband.

¶182

25.In view of the above infirmities and inconsistencies and inherent improbablities, this Court holds that the prosecution miserably failed to prove the possession of the huge quantity of the contraband in two bags in the custody of the appellant. Hence, the appellant made out a case for acquittal.

¶183

24/27

¶184

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

¶185

Crl.A.(MD).No.932 of 2023

¶186

26. In the result, this Criminal Appeal stands allowed.

¶187

Consequently, connected miscellaneous petition is closed.

¶188

26.1. The conviction under Section 8(c) r/w 20(b)(ii)(C) of NDPS

¶189

Act passed by the learned II Additional Special Judge, Special Court for NDPS Act cases, Madurai, by judgment dated 13.09.2023, in C.C.No.76 of 2016, is hereby set aside.

¶190

26.2. The appellant is acquitted from all the charges in C.C.No. 76 of 2016, on the file of the learned II Additional Special Judge, Special Court for NDPS Act cases, Madurai.

¶191

26.3.Fine amount paid by the appellant shall be refunded to the appellant forthwith.

¶192

26.4.Bail bond executed by the appellant shall stand cancelled.

¶193

05.11.2025

¶194

NCC :Yes/No Index :Yes/No Internet :Yes/No

¶195

sbn

¶196

25/27