Kasimayan Vs The State of Tamilnadu

PRAYER: Petition filed under Section 430 of BNSS, to suspend the sentence imposed on the petitioner / appellant/ accused No.2 namely Kasimayan, S/o.Pandi passed by the Principal Special Court for EC and NDPS Act Cases, Madurai in CC.No.26 of 2016 dated 28.10.2024 and enlarge the petitioner on bail pending disposal of the criminal appeal.

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For Petitioner : Mr.Jagadeesh Pandian For Respondent : Mr.T.Senthil Kumar,

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Additional Public Prosecutor

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

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CrlMP(MD)No.3657 of 2025

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ORDER

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The petitioner is accused No.2 in CC.No.26 of 2016 on the file of the Principal Special Court for EC and NDPS Act Cases, Madurai. By the judgment dated 28.10.2024 the petitioner was found guilty, convicted for the offence under Section 29(1) and 8(c) r/w 20(b)(ii)(C) of NDPS Act and sentenced to undergo 10 years rigorous imprisonment with a fine of Rs.1,00,000/- in default to undergo six months simple imprisonment. As against the conviction and sentence imposed by the trial Court, this petitioner has filed an appeal before this Court in Crl.A(MD) No.348 of 2025 and the same has been admitted by this Court on 19.03.2025.

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2.The learned counsel for the petitioner submits that the mandatory provisions under Sections 24 and 50 of the NDPS Act have not been complied with in this case. According to PW3, the rights under Section 50 of the NDPS Act was explained to the accused and he has given consent for search by the investigating officer himself, however Ex.P5 / consent search letter is a typed document which also includes the reply of

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the petitioner and this document is not in conformity with Section 50 of the Act. Therefore, the recovery itself is highly doubtful. As per Section 42 of the Act, the information ought to have been recorded and forwarded to the superior immediately. Ex.P9 is the information recorded by PW3, according to whom, the information was forwarded to the DSP. However there is no endorsement or signature of the DSP to prove that he has received the information. He further submits that no sample was drawn in the presence of the Judicial Magistrate. He further submits that no independent witness was examined and no material was produced to prove the recovery. The petitioner is in jail for more than 2 years.

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3.The learned Additional Public Prosecutor raised objection that the petitioner has involved in a case of similar nature and he has been acquitted. That apart, in yet another case, the trial is pending.

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4.The petitioner has raised certain arguable points in this petition, which can be considered only during the final hearing of the appeal. However the appeal could not be taken up for final hearing for want of

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time. Considering the period of incarceration and for the reason that the appeal could not be taken up immediately, this Court is inclined to allow this petition, however with stringent condition for his bad antecedent.

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5.Accordingly this petition is allowed and the substantive sentence of imprisonment imposed on the petitioner alone is suspended pending disposal of the criminal appeal on the following conditions:

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(i) The petitioner is ordered to be enlarged on bail on executing a bond for Rs.1,00,000/- (Rupees One Lakh) with two sureties each for a like sum to the satisfaction of the Principal Special Court for EC and NDPS Act Cases, Madurai.

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(ii) The petitioner and the sureties shall file an affidavit before the respondent police that the petitioner will not misuse this liberty and will not indulge in any further offence. He will be available for the trial and also during this appeal proceedings.

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(iii) The petitioner shall report before the respondent police daily at 10.30 am.

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(iv)If the petitioner changes his residence, the same shall be informed to the respondent police immediately with correct address. 4/6

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(v) If the petitioner violates any of the conditions, the respondent

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police shall move an application to cancel the order of suspension of